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Georgetownlawjournal.org

Decarceration Courts: Possibilities and Perils of a
Shifting Criminal Law
ALLEGRA M. MCLEOD* A widely decried crisis confronts U.S. criminal law. Jails and prisons are overcrowded and violence plagued. Additional causes for alarm include the rateof increase of incarcerated populations, their historically and internationallyunprecedented size, their racial disproportionality, and exorbitant associatedcosts. Although disagreement remains over the precise degree by which incarcera-tion ought to be reduced, there is a growing consensus that some measure ofdecarceration is desirable. With hopes of reducing reliance on conventional criminal supervision and incarceration, specialized criminal courts proliferated dramatically over thepast two decades. There are approximately 3,000 specialized criminal courts inthe United States, including drug courts, mental health courts, veterans courts,and reentry courts. The existing scholarly commentary on specialized criminalcourts is largely trapped in the mode of advocacy, alternately celebratory ordisparaging, and insufficiently attentive to the remarkable variation betweendifferent specialized criminal courts. In contrast, this Article takes a closer andmore critical look at the marked expansion of these courts as a peculiarstrategy to devise alternatives to conventional jail- and prison-based sentenc-ing. This Article reveals that specialized criminal courts have become significant terrain for a contest between competing criminal law reformist models and thatdifferent outcomes in this contest may portend starkly contrasting futures forU.S. criminal law and governance. More specifically, this Article introduces atypology and critical theoretical account of four criminal law reformist modelsat work in specialized criminal courts: a therapeutic jurisprudence model, ajudicial monitoring model, an order maintenance model, and a decarcerationmodel. Part II argues that, whereas the first three of these models threaten to * Associate Professor, Georgetown University Law Center. J.D., Yale Law School, 2006; Ph.D., Stanford University, 2009. 2012, Allegra M. McLeod. For helpful discussion of the ideas explored inthis Article, I am especially thankful to Bruce Ackerman, Easha Anand, Hadar Aviram, David Barron,Guyora Binder, Josh Cohen, David Cole, Dennis Curtis, Matthew Dimick, Sharon Dolovich, MalcolmFeeley, Dyan Ferraris, William Hubbard, Vicki Jackson, Pam Karlan, Doug Keller, Mark Kelman, IssaKohler-Hausmann, Adam Kolber, Adriaan Lanni, Derin McLeod, John T. Monahan, Judith Resnik,Tanina Rostain, Louis Michael Seidman, Abbe Smith, Carol Steiker, Kate Stith, Jeannie Suk, DavidSuper, Joshua C. Teitelbaum, Detlev Vagts, Robert Weisberg, Robin West, the editors of The George-town Law Journal, the research librarians at Georgetown Law Faculty Services, and workshopparticipants at Georgetown University Law Center, Yale Law School, and the 2011 Law and SocietyMeeting in San Francisco. I also received many thoughtful questions and useful feedback fromparticipants in the faculty workshops at the following law schools: Berkeley, Brooklyn, Chicago,Cornell, Duke, Fordham, Harvard, Minnesota, Rutgers–Camden, Seattle, Stanford, UC Davis, Univer-sity of San Francisco, University of Toronto, University of Virginia, and the Washington College ofLaw at American University. Any errors are my own.
THE GEORGETOWN LAW JOURNAL aggravate existing pathologies in U.S. criminal law administration—expandingcriminal supervision, diminishing procedural protections, and possibly evenincreasing incarceration despite opposite intended effects—the fourth, lesspredominant model, a decarceration model, holds the potential to bring aboutsubstantial transformative change in U.S. criminal law. On a decarcerationmodel, specialized criminal courts function as experimental diversionary pro-grams that assign otherwise jail- or prison-bound defendants mental health anddrug treatment, job and housing placement, along with other services in lieu ofincarceration. On this model, integration within social contexts outside criminaljustice systems substitute for the surveilling function of criminal supervisionand incarceration. Part III provides a theoretical framework to capture the possibilities for criminal law reform opened by a decarceration model, which may cognitivelyreframe shared understandings of crime and punishment; engage in institu-tional reinvention, transforming criminal law administrative institutions intodifferent configurations; and facilitate systemic change by spurring conceptualshifts and freeing resources from criminal law administration for other sectors.
Part IV begins to explore the more general perils attending a specializedcriminal courts law reform strategy, including excessive legalism; dilution ofthe retributive and deterrent features of criminal punishment; inefficient prolifer-ating specializations; and legitimation of harshness in conventional courts andunfairness toward less sympathetic, racial minority, or otherwise stigmatizeddefendants. TABLE OF CONTENTS REFIGURING HARSH JUSTICE: LEGISLATION, LAW ENFORCEMENT, CRIMINAL COURT REFORM: SPECIALIZED CRIMINAL COURTS . . .
FOUR REFORMIST MODELS AT WORK IN SPECIALIZED CRIMINALCOURTS . . . . . . . . . . . . . . . . . . . . . .
THERAPEUTIC JURISPRUDENCE MODEL . . . . . . . . . .
JUDICIAL MONITORING MODEL . . . . . . . . . . . . .
ORDER MAINTENANCE MODEL . . . . . . . . . . . . .
DECARCERATION MODEL POSSIBILITIES OF A DECARCERATION MODEL . . . . . . . . .
DECARCERATION COURTS COGNITIVE REFRAMING INSTITUTIONAL REINVENTION . . . . . . . . . . . . .
PERILS OF SPECIALIZED CRIMINAL LAW REFORM . . . . . . . .
REDUCED PROCEDURAL PROTECTIONS? . . . . . . . . . .
SPECIALIZATION FOR GOOD OR FOR ILL? . . . . . . . . .
Significant change is afoot in U.S. criminal law. There remain roughly seven million people incarcerated, on probation, or on parole in the United States1—aquantum of criminal law oversight roundly condemned by commentators acrossthe political spectrum and around the world.2 But by the turn of the twenty-first 1. See, e.g., LAUREN E. GLAZE, BUREAU OF JUSTICE STATISTICS, CORRECTIONAL POPULATION IN THE UNITED STATES, 2010, at 1 (2011); PEW CENTER ON THE STATES, ONE IN 31: THE LONG REACH OF AMERICANCORRECTIONS 1 (2009); see also Carol S. Steiker, Mass Incarceration: Causes, Consequences, and ExitStrategies, 9 OHIO ST. J. CRIM. L. 1, 1 (2011) ("The American rate of incarceration has increased morethan fivefold since 1972 . . [and] [t]he current rate is more than 700 per 100,000 . . The UnitedStates['] . . rate of incarceration [is] . . higher than even the most violent societies and mostoppressive regimes on the planet[.] . . The change in American incarceration rates is a shift relative toa previously stable baseline that can only be described as revolutionary . . " (footnotes omitted)).
2. See, e.g., Charlie Savage, Trend To Lighten Harsh Sentences Catches On in Conservative States, N.Y. TIMES, Aug. 12, 2011, http://www.nytimes.com/2011/08/13/us/13penal.html (noting increasingsupport in traditionally conservative states for reduced incarceration, including on the part of prominentconservatives such as Edwin R. Meese III, Grover Norquist, and Asa Hutchinson); see also MassIncarceration in the United States: At What Cost?: Hearing Before the J. Econ. Comm., 110th Cong.
1–2 (2007) (opening statement of Sen. Jim Webb) ("[T]he United States now imprisons a higherpercentage of its citizens than any other country in the world. . The growth in the prison population isonly nominally related to crime rates. . The racial composition of America's prisons is alarm-ing. . [W]e are spending enormous amounts of money to maintain [the prison] system."); Erik Luna& Paul G. Cassell, Mandatory Minimalism, 32 CARDOZO L. REV. 1, 3 (2010) (noting conservativesupport for eliminating mandatory minimums); William J. Stuntz, The Pathological Politics of Crimi-nal Law, 100 MICH. L. REV. 505, 509 (2001) ("As criminal law expands, both lawmaking andadjudication pass into the hands of police and prosecutors . . The end point of this progression isclear: criminal codes that cover everything and decide nothing, that serve only to delegate power todistrict attorneys' offices and police departments. . In a criminal justice system that incarcerates twomillion people, criminal law is becoming a sideshow. It seems like, and is, an unhealthy state ofaffairs."); Loı¨c Wacquant, Class, Race & Hyperincarceration in Revanchist America, DÆDALUS, Sum-mer 2010, at 74, 74 ("[T]he joint rolling back of the stingy social state and rolling out of the gargantuanpenal state . . have remade the country's stratification, cities, and civic culture, and are recasting the THE GEORGETOWN LAW JOURNAL century, largely in response to growing censure and in the face of escalatingcosts, states across the country committed to decrease reliance on incarcera-tion.3 Alongside state-initiated reforms, federal prison conditions litigation con-tributed further incentives to decarcerate. Most notably, the U.S. Supreme Courtin Brown v. Plata affirmed an order of a specially convened three-judge districtcourt, which mandated that California reduce its prison population by 40,000prisoners over two years to eliminate unconstitutional conditions.4 Yet, whilepressures to decarcerate mount, it remains unclear how it will be possible toachieve the larger scale shifts necessary to reach and sustain markedly lowerlevels of criminal prosecution, criminal supervision, and incarceration.5 As one part of a broader effort to reduce reliance on conventional probation and carceral sentencing, beginning in the early 1990s, state court judges beganto convene specialized criminal courts from Florida to California, Michigan toTexas: drug courts, mental health courts, veterans courts, and reentry courts,among others.6 These increasingly popular specialized criminal courts—ofwhich there are approximately 3,000 in the United States and its territories—assume various legal institutional forms and divergent jurisprudential ap-proaches.7 Nonetheless, despite considerable variation, what most of the courtsshare in common is the goal of reducing reliance on conventional jail- and very character of ‘blackness' itself."); Newt Gingrich & Pat Nolan, Op-Ed., Prison Reform: A SmartWay for States To Save Money and Lives, WASH. POST, Jan. 7, 2011, http://www. washingtonpost.com/wp-dyn/content/article/2011/01/06/AR2011010604386.html (exploring the substantial potential of decarcera-tion to reduce costs and crime).
3. See, e.g., JUDITH GREENE & MARC MAUER, THE SENTENCING PROJECT, DOWNSCALING PRISONS: LESSONS FROM FOUR STATES 1–2 (2010); see also David Cole, Turning the Corner on Mass Incarcera-tion?, 9 OHIO ST. J. CRIM. L. 27 (2011).
4. See 131 S. Ct. 1910, 1944–47 (2011); see also Solomon Moore, California Prisons Must Cut Inmate Population, N.Y. TIMES, Aug. 4, 2009, http://www.nytimes.com/2009/08/05/us/05calif.html.
5. See, e.g., Louis Michael Seidman, Hyper-Incarceration and Strategies of Disruption: Is There a Way Out?, 9 OHIO ST. J. CRIM. L. 109 (2011); Robert Weisberg & Joan Petersilia, The Dangers ofPyrrhic Victories Against Mass Incarceration, DÆDALUS, Summer 2010, at 124.
6. Several points of terminological clarification are in order. "Carceral" sentencing refers to prison- and jail-based criminal sanctions. I use the term "specialized criminal court" to refer to courts thatspecialize in a specific subset of criminal cases, such as matters in which defendants are veterans or thecharged conduct is drug related. This specialization is distinct from that of many state trial courts thathear criminal cases exclusively and are specialized in that respect. See LAWRENCE BAUM, SPECIALIZING THE COURTS xi (2011). "Decarceration" refers to the consistent reduction of the number of people sent toprison or jail, with the ultimate aim of abandoning imprisonment as a dominant mechanism forachieving social order.
7. See, e.g., RACHEL PORTER ET AL., CTR. FOR COURT INNOVATION, WHAT MAKES A COURT PROBLEM- SOLVING?: UNIVERSAL PERFORMANCE INDICATORS FOR PROBLEM-SOLVING JUSTICE iii, 50–56 (2010). There isoverwhelming bipartisan endorsement of specialized criminal courts and every state has at least onesuch court. See, e.g., RESOLUTION 22: IN SUPPORT OF PROBLEM-SOLVING COURT PRINCIPLES AND METHODS(Conference of Chief Justices & Conference of State Court Adm'rs, adopted July 29, 2004), http://ccj.ncsc.dni.us/CourtAdmin Resolutions/ProblemSolvingCourtPrinciplesAndMethods.pdf; see also GREGBERMAN & JOHN FEINBLATT, GOOD COURTS: THE CASE FOR PROBLEM-SOLVING JUSTICE 9–10 (2005); JudithS. Kaye, Delivering Justice Today: A Problem-Solving Approach, 22 YALE L. & POL'Y REV. 125, 130(2004) ("[T]hese courts have developed a new architecture—including new technology, new staffing,and new linkages—to improve the effectiveness of court sanctions, particularly intermediate sanc-tions . . "). Criminal court specialization has also influenced criminal law administration abroad. See DECARCERATION COURTS prison-based sentencing in favor of problem-oriented alternatives.8 The courtsalso empower judges to adopt neo-realist problem-oriented roles, embrace lessadversarial criminal procedures, and aspire to more effectively protect publicsafety and prevent crime.9 It is uncertain, though, what specialized criminal courts actually portend. Are these courts configured in a manner that is likely to facilitate the intended goalsof reduced or more efficacious criminal supervision and reduced incarceration?Or, as some critics charge, do specialized criminal courts improve judges'experience in the courts by emphasizing anti-formalist, problem-oriented proceed-ings without tending to resolve the legal systemic and social problems thecourts purport to address?10 This Article offers an account of how specialized criminal courts may enable substantially reduced reliance on incarceration as well as more general transfor-mative criminal law reform by embracing a criminal law reformist framework,which I term a decarceration model. However, this Article will argue that, intheir currently predominant institutional forms, specialized criminal courtsthreaten to produce a range of unintended and undesirable outcomes: unnecessar-ily expanding criminal surveillance, diminishing procedural protections, andpotentially even increasing incarceration.
The existing scholarship on specialized criminal courts treats particular sub- stantively specialized criminal courts—drug courts, for example—as a largelyundifferentiated category, either celebrating or proposing the abandonment ofspecialized criminal law administration across the board. On the one hand, somecommentators commend specialized criminal courts for facilitating "a quietrevolution among American criminal courts"11 and the emergence of a new"criminal justice paradigm."12 Also among the courts' supporters are those who JAMES L. NOLAN JR., LEGAL ACCENTS, LEGAL BORROWING: THE INTERNATIONAL PROBLEM-SOLVING COURTMOVEMENT (2009).
8. See BERMAN & FEINBLATT, supra note 7, at 6 ("[P]roblem-solving courts seek to reduce the criminal justice system's reliance on incarceration . . "); John A. Bozza, Benevolent Behavior Modifi-cation: Understanding the Nature and Limitations of Problem-Solving Courts, 17 WIDENER L.J. 97, 98(2007).
9. See BERMAN & FEINBLATT, supra note 7, at 5–10.
10. See, e.g., JAMES L. NOLAN, JR., REINVENTING JUSTICE: THE AMERICAN DRUG COURT MOVEMENT 11. See BERMAN & FEINBLATT, supra note 7, at 3; NOLAN, supra note 10, at 185 ("What we are doing here is no less than a complete revolution in jurisprudence." (quoting Judge Peggy Hora)).
12. See Peggy Fulton Hora et al., Therapeutic Jurisprudence and the Drug Treatment Court Movement: Revolutionizing the Criminal Justice System's Response to Drug Abuse and Crime inAmerica, 74 NOTRE DAME L. REV. 439, 463–64 (1999) (describing how drug courts work to "shift theparadigm" of legal processing of drug cases); see also DRUG STRATEGIES, DRUG COURTS: A REVOLUTION INCRIMINAL JUSTICE 2, 5 (1999) ("[T]his entirely new approach has revolutionized traditional attitudestoward criminal justice."). A separate body of empirical analyses focuses on how specialized criminalcourts reduce costs and recidivism, though it is not always clear whether these studies adequatelycontrol for potential selection and attrition biases. See, e.g., SHANNON M. CAREY & MARK S. WALLER,NPC RESEARCH, OREGON DRUG COURT COST STUDY: STATEWIDE COSTS AND PROMISING PRACTICES (2011)(finding that Oregon drug courts have produced cost savings, and are projected to save taxpayers even THE GEORGETOWN LAW JOURNAL herald specialized criminal courts as "experimentalist governance" mechanismsenabling much-needed social and legal change not achievable through moreconventional judicial or legislative intervention.13 On the other hand, the courts'detractors—criminal law scholars and criminal defense lawyers alike—havecalled for the abandonment or marked scaling back of specialized criminalcourts as "contraindicated" and anathema to the reformist goals the courts'architects hoped to achieve, largely on account of procedural rights concerns.14Both of these sharply divided responses approach each type of substantivelyspecialized criminal court as internally homogeneous and either entirely praise-worthy or entirely dangerous. Accordingly, there has been insufficient attentionboth to the remarkable variation between specialized criminal courts and to thedifferent consequences potentially associated with the courts' divergent ap-proaches.
This Article demonstrates, instead, that specialized criminal courts have become the locus of an ongoing contest between four primary competingmodels of reformist criminal law administration. These models are character-ized by dissimilar legal institutional features and distinct ideological and theoreti-cal commitments. And these divergent approaches push in quite differentdirections in terms of their likely effects on incarceration practices, levels ofcriminal supervision, and other desired criminal law reforms.
Consider this motley assortment of specialized criminal courts and the vari- ous criminal offenses, sentences, ideologies, and possible outcomes associatedwith each. First, the Veterans Court of Okemos, Michigan and the case of StaffSergeant Brad Eifert, a veteran of the Iraq War. Armed with a .45-caliber pistol, more in the future); Scott W.M. Burrus et al., Show Me the Money: Child Welfare Cost Savings of aFamily Drug Court, JUV. & FAM. CT. J., Summer 2011, at 1, 10–11 & tbl.2 (finding that family drugcourt in Baltimore, Maryland reduced foster care-related expenditures); see also SHELLI B. ROSSMAN ET AL., URBAN INST., THE MULTI-SITE ADULT DRUG COURT EVALUATION: THE IMPACT OF DRUG COURTS 246–47(2011) (concluding that "drug courts—while effective at reducing costly criminal offending—are alsoexpensive enough to offset those costs").
13. See, e.g., Michael C. Dorf & Charles F. Sabel, Drug Treatment Courts and Emergent Experimen- talist Government, 53 VAND. L. REV. 831, 883 (2000) ("The very existence of treatment courts isremarkable, their rapid diffusion, provisional successes, and continual experimentalist self-examinationdoubly so. . Surely there is hope for the renewal of our public institutions in this surprisingsuccess."). Proponents of specialized criminal courts generally contend that conventional U.S. criminallaw administration is deeply compromised, and specialized criminal courts may better address indi-vidual cases and improve criminal justice results overall. See, e.g., Brenda Bratton Blom et al.,Community Voice and Justice: An Essay on Problem-Solving Courts as a Proxy for Change, 10 U. MD.
L.J. RACE, RELIGION, GENDER & CLASS 25, 36–37 (2010).
14. See, e.g., Josh Bowers, Contraindicated Drug Courts, 55 UCLA L. REV. 783, 786, 830–35 (2008) (critically examining adverse consequences of drug courts and proposing instead that suchcourts be transformed into voluntary rehabilitation programs) ("Put concretely, drug courts are ‘contrain-dicated' for genuine addicts . . The consequent adverse effects may be atypically long prison sen-tences for the very defendants that drug courts were supposed to keep out of prison and off of drugs."(footnote omitted)); Mae C. Quinn, The Modern Problem-Solving Court Movement: Domination ofDiscourse and Untold Stories of Criminal Justice Reform, 31 WASH. U. J.L. & POL'Y 57, 80–82 (2009);see also NAT'L ASS'N OF CRIMINAL DEF. LAWYERS, AMERICA'S PROBLEM-SOLVING COURTS: THE CRIMINALCOSTS OF TREATMENT AND THE CASE FOR REFORM (2009).
DECARCERATION COURTS Eifert initiated a shoot-out with police in the woods adjacent to his home: The police were out there somewhere and, one way or the other, [Eifert] wasready to die. He raised the gun to his head and then lowered it. Then he firednine rounds.
. .
Leaving his weapon, he ran into the driveway, shouting, "Shoot me! Shootme! Shoot me!" The police officers subdued him with a Taser and arrestedhim. A few hours later, he sat in a cell at the Ingham County Jail, charged withfive counts of assault with intent to murder the officers, each carrying apotential life sentence.
. .
. . Eifert, having pleaded guilty to a single charge of carrying a weapon withunlawful intent, a felony, will officially enter the veterans court pro-gram. . [In t]welve to 18 months[,] . . if he adheres to the strict regimen oftreatment through the Veterans Affairs hospital in Battle Creek and supervi-sion set by the court, the charge could be dismissed or reduced to a misde-meanor.15 Compare Eifert's case and the Okemos Veterans Court to Florida's Broward County Mental Health Court. In the words of Broward County's Judge GingerLerner-Wren: [T]he Mental Health Court [is] a "strategy" to bring fairness to the administra-tion of justice for persons being arrested on minor offenses who suffer frommajor mental disability. . Persons with major psychiatric disorders and/ormental disabilities can live and thrive in the community with individualizedcare, treatment and community support.16 Whereas Eifert's case involved a more serious weapons charge carrying a potentially lengthy prison sentence, Judge Lerner-Wren's Mental Health Courtconcentrates on individuals accused of minor crimes. Yet, both the BrowardCounty Mental Health Court and the Okemos Veterans Court rely on alternativesanctions that entail treatment primarily outside the specialized criminal court.
Other specialized criminal courts rely heavily on judicial monitoring as part and parcel of alternative sentencing, rather than primarily on referral to socialservices outside the criminal court, effectively tasking the judge with the workof a probation or parole officer. For example, the Syracuse, New York DrugTreatment Court significantly expands judicial surveillance of minor drug offend-ers and uses arrest and incarceration as routine sanctions for noncompliancewith court mandates. As sociologist James Nolan explains, in one instance: 15. See Erica Goode, Coming Together To Fight for a Troubled Veteran, N.Y. TIMES, July 17, 2011, 16. DEREK DENCKLA & GREG BERMAN, CTR. FOR COURT INNOVATION, RETHINKING THE REVOLVING DOOR: A LOOK AT MENTAL ILLNESS IN THE COURTS 17 (2001) (emphasis added).
THE GEORGETOWN LAW JOURNAL A participant in Judge McKinney's Syracuse, New York drug court lost hisjob. McKinney called the employer and learned that the client was regardedas a "damn good employee" and that the boss would "hire him back in aheartbeat" if the judge could guarantee that he was drug free and that hewouldn't miss any work. So the judge made a deal with the employer. He saidto him: "Okay, I'll make a deal with you, you take him back and I'll addanother weapon to your arsenal. If he doesn't come to work when he issupposed to, doesn't come to work on time . . I'll put him in jail, on your sayso." [The judge relayed the arrangement to the defendant,] telling him: "I'llget your job back for you, but you've got to promise you'll be at work whenyou are supposed to . . Your employer is now on the team of people whoare reporting to me. When he calls up and tells me that you are late, or thatyou're not there, I'm going to send the cops out to arrest you."17 This approach may extend criminal supervision into new domains such as the employment context and in so doing may increase levels of at least short-termincarceration. Quite distinctly, the mental health and veterans courts' ap-proaches just related are characterized by a combination of diversionary treat-ment strategies that do not necessarily rely heavily on judicial surveillance orother forms of direct criminal supervision by the court.
These examples illustrate some of the considerable diversity in the institu- tional configurations and conceptual orientations of specialized criminal courts.
These courts may focus on more minor offenses or more serious ones. Theymay rely primarily on referrals to social service organizations or on directjudicial oversight. The court proceedings themselves may aim to facilitatebehavioral modification, or social service intervention may occur entirely out-side the court context. And diversion may take place pre-plea, post-plea, or as apost-conviction sentencing alternative.
To begin to make sense of this diverse landscape, this Article introduces a typology and critical theoretical account of four criminal law reformist modelsat work in specialized criminal courts: (1) a therapeutic jurisprudence model; (2) a judicial monitoring model; (3) an order maintenance model; and (4) a decarceration model.18 The first three of these models, I argue, possess characteristics that pose aconsiderable risk of deepening and extending existing pathologies in criminallaw administration, exacerbating overcriminalization and potentially expanding 17. See James L. Nolan, Jr., Therapeutic Adjudication, 39 SOCIETY 29, 32 (2002).
18. See infra Part II.
DECARCERATION COURTS incarceration. But the fourth model—a decarceration model—promises to beginto reduce levels of criminalization and incarceration and to develop experimen-talist and sociologically informed alternatives to criminal law intervention.
These four models consist of generally interconnected institutional features and ideological commitments on which the courts draw. Although numerouscourts reflect some characteristics of more than one model, the models areprototypes to which existing courts roughly adhere. In identifying these basiccontrasting approaches, this typology serves to illuminate some of the underap-preciated variation between and among different specialized criminal courts,thereby distinguishing the specific risks associated with distinct bundles of legalinstitutional and ideological features, facilitating more informed empirical analy-sis and clarifying the contours of various possible reform agendas being testedin the specialized courts context.
Before delving in greater depth into the four models and their associated aspirations, risks, and limitations, a brief overview of each model will help toset the stage for the analysis to follow. Courts operating on a therapeuticjurisprudence model adopt a neo-rehabilitative approach, convening courts totherapeutically treat offenders (and in some instances victims).19 On a therapeu-tic jurisprudence model, the judge personally attempts to facilitate a therapeuticprocess in court through routine proceedings, intermediate sanctions, and insome instances jail- or prison-based sentencing. Substantial efforts are devotedto making court proceedings themselves part of ongoing psychotherapeuticinterventions aimed at behavioral modification.
The second model relies upon intensive judicial monitoring, focusing on deterrence, defendant accountability, and expanded judicial surveillance as analternative or adjunct to incarceration.20 A court operating solely in conformitywith a judicial monitoring model eschews the court-centered rehabilitativepsychotherapeutic ambitions that are central to the therapeutic jurisprudencemodel and instead emphasizes deterrent judicially administered surveillance.
A third model, emphasizing order maintenance, operates largely in commu- nity courts, which address relatively minor public order violations throughlocally administered intermediate sanctions such as community service.21 Courtsreflecting an order maintenance model are characterized primarily by their focuson low-level quality-of-life offenses inspired by a "broken windows" theory ofpolicing and do not necessarily embrace either therapeutic or judicially surveil-lant features.
Then, there is the fourth, less common model, the theoretical orientation and reformist potential of which this Article will elaborate: a decarceration model.
Specialized criminal courts adopting a decarceration model are experimentaldiversionary programs that assign otherwise likely jail- or prison-bound defen- 19. See infra section II.A.
20. See infra section II.B.
21. See infra section II.C.
THE GEORGETOWN LAW JOURNAL dants mental health and drug treatment, job and housing placement, along withother services in lieu of incarceration.22 On a decarceration model, integrationwithin social institutions outside the criminal court substitutes for the surveil-ling function of criminal supervision and incarceration.23 The significant reform-ist possibility in a decarceration model arises principally from its directlydiversionary orientation coupled with rigorous ongoing empirical monitoring ofcourt experimentation to establish whether and, if so, how non-carceral sentenc-ing may be applied in particular contexts without undue risk to public safety.24 The models are distinct from, though often overlapping with, the self- definitions and names of the courts. In other words, the models are composed ofbundles of legal institutional and ideological features identified through myresearch in preparation of this Article—through site visits, analysis of archivedinterviews, and a review of quantitative and qualitative empirical studies—notexclusively, or even primarily, in reference to the self-descriptions of thevarious courts. So while a drug court might conform to an order maintenancemodel or a therapeutic jurisprudence model, in either instance the court maystill be called simply a drug court. Likewise, a mental health court might reflectfeatures of a judicial monitoring model but be referred to plainly as a mentalhealth court. Courts adopting a diversionary decarceration approach are simi-larly not called decarceration courts but are identified as drug courts or mentalhealth courts—and for reasons of political expedience, avoiding the decarcera-tion terminology may be prudent. Other courts with characteristics correspond-ing to a therapeutic jurisprudence model may tailor the courts' names to reflecttheir therapeutic orientation, as in a therapeutic drug court or drug treatmentcourt. Even though multiple institutional models may coexist in one court, oneor another model generally predominates in any given specialized criminalcourt.
22. A decarceration model is potentially applicable to any specialized criminal court—a mental health court, veterans court, drug court, or reentry court—which is organized in significant part todecrease reliance on incarceration and to devise more effective and humane sentencing alternatives. Seeinfra sections II.D–IV.
23. See infra section II.D.
24. A notable feature of many specialized criminal courts, and one common to courts adopting a decarceration model, is the incorporation of resident or external researchers within the courts' institu-tional design. Internal and external empirical monitoring entities generate extensive informationregarding the courts' operations. See, e.g., Dorf & Sabel, supra note 13, at 833 ("What makes the drugcourts distinctive and innovative . . is the novel form of monitoring, and governance more generally,upon which they rely."). But see David A. Super, Laboratories of Destitution: Democratic Experimental-ism and the Failure of Antipoverty Law, 157 U. PA. L. REV. 541 (2008) (critically analyzing democraticexperimentalism for mistakenly assuming consensus, reliable metrics for measuring success, andcostless deliberation, among other problems). A decarceration model of specialized criminal lawadministration aims to take on board some of Super's critiques of democratic experimentalism and, atthe same time, to embrace institutional flexibility and ongoing empirically informed self-evaluation,with attention to building consensus on the substantive ends of reducing reliance on incarcerationthrough alternative forms of social integration.
DECARCERATION COURTS Judge seeks to fulfill therapeutic function, personally addressing psychosocial motivation to offendthrough therapeutically attunedcourt proceedings Judge fulfills surveillant role akin to Deterrence through Judicial probation or parole officer Court provides forum for "Broken Windows" Order- prosecuting quality-of-life offenses Maintenance Hypothesis: that would otherwise receive little Reducing low level quality- attention in conventional criminal of-life offending will improve respect for law and decreasecrime overall, therebyreducing incarceration Court aims primarily to reduce reliance on carceral sentencing by of Overcriminalization & referring defendants to mental health, public health, job training, integration fulfills informally and other sectors that serve surveillant function, a substitute surveilling function, and preferable substitute for outcomes are monitored to incarceration in wide range demonstrate possibility of expanding non-carceral approach The following table illustrates the defining characteristics and theoretical bases of each of the four models.
This Article's core argument is that the therapeutic jurisprudence, judicial monitoring, and order maintenance models may fall short in reducing criminalsupervision and incarceration and threaten to produce otherwise harmful out-comes; a decarceration model, however, stands to facilitate broader transforma-tive criminal law reform, setting in motion change processes that could overtime reduce reliance on criminal prosecution and incarceration as a way ofregulating an array of complex social problems. The risks attributed by critics toany one particular type of specialized criminal court—drug courts, for instance—are thus better understood as potential problems with particular models (bundlesof legal institutional and ideological features) of reformist criminal law adminis-tration, certain of which may even tend to extend surveillance, diminish proce-dural protections, and expand incarceration.25 Due to this variation, coming to terms with the shifts in criminal law manifest in specialized criminal courts will not be achieved either by simply embracing 25. Cf. NAT'L ASS'N OF CRIMINAL DEF. LAWYERS, supra note 14; Bowers, supra note 14.
THE GEORGETOWN LAW JOURNAL or by rejecting the turn to criminal court specialization. Rather, the effects ofspecialized criminal courts will depend on an ongoing competition over theshape and ambition of these courts. And a decarceration-focused criminal lawreform agenda—emerging in specialized criminal courts that attempt to navi-gate the perils and harness the possibilities identified in the pages to follow—holds the promise of enabling a form of criminal law administration morenarrowly tailored to address that conduct for which criminal law intervention ismost suited, allocating to other sectors the management of a range of socialconcerns from addiction to mental illness.
Importantly then, the impact of these reformist models reaches beyond the context of specialized criminal courts. At this moment of increasing bipartisaninterest in criminal law reform aimed at reducing incarceration, the models atwork in specialized criminal courts are likely to take on wider significance,informing more general criminal law reform strategies. For this reason, atten-tion to these contrasting reformist approaches at work in specialized criminalcourts merits the sustained attention of criminal law scholars and others con-cerned about the steep costs—economic and human—of the status quo in U.S.
criminal law administration and about the harms endemic in our carceralinstitutions.
This Article consists of four parts. Part I situates the contemporary explosion of specialized criminal courts within a range of ongoing criminal law reformsimplemented to reduce levels of criminal supervision and incarceration. Part Iproposes that, as states and the federal government aim to decrease reliance onincarceration, specialized criminal courts contribute an array of criminal lawreformist frameworks that may inform the wide-ranging, largely ad hoc changesoccurring more generally in U.S. criminal law.
Part II provides a typology and critical analysis of four criminal law reformist models reflected in the rapidly multiplying assortment of specialized criminalcourts. Part II considers not only whether these models are likely to fulfill theirstated purposes but also some of their possible broader effects. An implicationof the analysis in Part II is that the study of specialized criminal courts ought toproceed in a different way than it has to date, by attending carefully to the legalinstitutional and conceptual differences between the various criminal law reform-ist models that the typology introduced here identifies. Part II contends that, incertain legal institutional configurations, specialized criminal courts may wellthwart the courts' overarching shared ambition of countering overcriminaliza-tion and overincarceration, and that they may cause other underappreciatedharms. Yet, if differently configured, the courts contain considerable broaderreaching reformist possibilities.
Part III explores three strategies that may enable a decarceration model to realize its reformist potential to reduce reliance on conventional criminal super-vision and incarceration as well as to facilitate other transformative shifts inU.S. criminal law. Part III proposes that, though it is unlikely and possibly DECARCERATION COURTS undesirable that specialized criminal courts would be brought to scale,26 even inrelatively small numbers a decarceration model may effect farther reachingreform by facilitating cognitive reframing of particular categories of crime andpunishment, engaging in institutional reinvention, and enabling systemic change.
Finally, Part IV considers the perils of a specialized criminal courts law reformapproach more generally and begins to respond to anticipated objections.
The analysis in Parts I through IV is informed by observation of proceedings in an array of specialized criminal courts; archived interviews with specializedcourt judges, court administrators, and court participants; a review of hundredsof the courts' promotional materials; additional primary source material concern-ing a national range of specialized criminal courts; the legal academic andsociological literature on the courts; and previously unexamined studies of thecourts conducted by government agencies and independent research entities.27 I. A SHIFTING CRIMINAL LAW Dissatisfaction with the status quo in U.S. criminal law administration has led to a range of attempts to establish alternatives. The precise contours of whatsuch alternatives should entail are uncertain. This Part will first take stock of thebroad shifts ongoing in U.S. criminal law. Although these shifts lack anorienting conceptual framework, specialized criminal courts have become groundsfor elaborating different criminal law reformist models, four of the most signifi-cant of which are explored in Part II.
Preliminarily, what does the status quo in conventional U.S. criminal law administration entail? A powerful body of criminal law and social theoreticalscholarship bears witness to the tremendous expansion and deepening harshnessof U.S. criminal law administration during the latter decades of the twentiethand beginning of the twenty-first centuries: to the harms and economic burdenscaused by both overcriminalization and overincarceration;28 to the "culture ofcontrol" these practices engendered;29 and to the United States' "harsh justice"regime,30 under which "the poor" and "urban outcasts" suffer most,31 and 26. See, e.g., PORTER ET AL., supra note 7, at 8 ("The potential for bringing the [specialized criminal] problem-solving court model to scale . . remains largely unrealized . . ").
27. See infra Parts I–IV.
28. See, e.g., BRUCE WESTERN, PUNISHMENT AND INEQUALITY IN AMERICA (2006); see also John C.
Coffee, Jr., Hush!: The Criminal Status of Confidential Information After McNally and Carpenter andthe Enduring Problem of Overcriminalization, 26 AM. CRIM. L. REV. 121 (1988); Sanford H. Kadish,The Crisis of Overcriminalization, 374 ANNALS AM. ACAD. POL. & SOC. SCI. 157 (1967); Erik Luna, TheOvercriminalization Phenomenon, 54 AM. U. L. REV. 703 (2005).
29. DAVID GARLAND, THE CULTURE OF CONTROL: CRIME AND SOCIAL ORDER IN CONTEMPORARY SOCIETY 30. JAMES Q. WHITMAN, HARSH JUSTICE: CRIMINAL PUNISHMENT AND THE WIDENING DIVIDE BETWEEN AMERICA AND EUROPE (2003).
31. LOI¨C WACQUANT, PUNISHING THE POOR: THE NEOLIBERAL GOVERNMENT OF SOCIAL INSECURITY (2009); LOI¨C WACQUANT, URBAN OUTCASTS: A COMPARATIVE SOCIOLOGY OF ADVANCED MARGINALITY (2008);WESTERN, supra note 28.
THE GEORGETOWN LAW JOURNAL through which we all are "governed through crime."32 As substantive criminallaw expanded dramatically, prosecutorial power mushroomed and so did caseload pressures and reliance on plea-bargaining.33 During the 1980s and 1990s, arange of causal forces pushed toward a form of governance in the United Statesthat relied heavily on conventional criminal law administration to maintainsocial order, in large part through policing, arrest, prosecution, probation, andoften lengthy prison sentences.34 The results have been disastrous, exceedinglyexpensive, and inhumane: racial and class disproportion in U.S. criminal courts,jails, and prisons is staggering, with African-American men incarcerated at arate six times greater than that of white men and nearly one in three youngAfrican-American men without a high school education living behind bars.35Prison and jail overcrowding is a persistent crisis.36 Sexual assaults in detentionsettings are daily occurrences.37 Even for those not subject to violent physicalor sexual abuse, what Charles Dickens wrote of American jails and prisons wellover a century ago remains true today: "[T]his slow and daily tampering withthe mysteries of the brain . . [visits] ghastly signs and tokens . . not sopalpable to the eye and sense of touch as scars upon the flesh . . "38 "[T]hesefrustrations," in the words of sociologist Gresham Sykes in his path-breakingstudy, The Society of Captives, "carry a . . profound hurt . . directed againstthe very foundations of the prisoner's being. The individual's picture of himselfas a person of value—as a morally acceptable, adult . . who can present someclaim to merit in his material achievements and his inner strength—begins towaver and grow dim."39 32. JONATHAN SIMON, GOVERNING THROUGH CRIME: HOW THE WAR ON CRIME TRANSFORMED AMERICAN DEMOCRACY AND CREATED A CULTURE OF FEAR (2007).
33. See William J. Stuntz, Plea Bargaining and Criminal Law's Disappearing Shadow, 117 HARV. L.
REV. 2548, 2550 (2004) ("The greater the territory substantive criminal law covers, the smaller the rolethat law plays in allocating criminal punishment.").
34. See, e.g., SIMON, supra note 32; LOI¨C WACQUANT, PRISONS OF POVERTY 5 (2009).
35. See HEATHER C. WEST, BUREAU OF JUSTICE STATISTICS, PRISON INMATES AT MIDYEAR 2009— STATISTICAL TABLES 2 (2010) ("Black non-Hispanic males . . were incarcerated at a rate more than 6times higher than white non-Hispanic males . . "); Bruce Western et al., Crime, Punishment, andAmerican Inequality 7 (June 2003) (unpublished working paper), available at http://inequality.princeton.edu/papers/western-crime.pdf ("Incredibly, 29 percent of black male dropouts under age 40 werebehind bars on an average day in 2000."); see also MICHELLE ALEXANDER, THE NEW JIM CROW: MASSINCARCERATION IN THE AGE OF COLORBLINDNESS (2010); DAVID COLE, NO EQUAL JUSTICE: RACE AND CLASS IN THE AMERICAN CRIMINAL JUSTICE SYSTEM (1999); WESTERN, supra note 28; Becky Pettit & BruceWestern, Mass Imprisonment and the Life Course: Race and Class Inequality in U.S. Incarceration, 69AM. SOC. REV. 151 (2004).
36. See, e.g., JOHN J. GIBBONS & NICHOLAS DE B. KATZENBACH, CONFRONTING CONFINEMENT: A REPORT OF THE COMMISSION ON SAFETY AND ABUSE IN AMERICA'S PRISONS 23, 26–27 (2006).
37. See, e.g., HUMAN RIGHTS WATCH, NO ESCAPE: MALE RAPE IN U.S. PRISONS, at v, 63 (2001); see also Sharon Dolovich, Strategic Segregation in the Modern Prison, 48 AM. CRIM. L. REV. 1, 2 (2011) ("[I]tis well recognized that people who are gay or transgender face heightened vulnerability to sexualvictimization behind bars." (footnotes omitted)).
38. CHARLES DICKENS, 1 AMERICAN NOTES FOR GENERAL CIRCULATION 239 (Chapman & Hall 2d ed.
39. GRESHAM M. SYKES, THE SOCIETY OF CAPTIVES: A STUDY OF A MAXIMUM SECURITY PRISON 79 (1958).
DECARCERATION COURTS Of the approximately 13.5 million people who spend time in U.S. prisons or jails over the course of a year, ninety-five percent return to communitiesoutside. They bring with them the psychic toll of living amidst violence anddespair and the heightened risk of having acquired contagious diseases, impact-ing the public health and public safety of communities around the country.40Further, costs to maintain high levels of incarceration—with one in thirty-oneadults in the United States under some type of correctional control41—havebecome exorbitant and particularly politically unpopular during a period ofsignificant fiscal constraints.42 As these costs of managing a range of social ills through criminal law and punishment have become increasingly apparent, the hold of these practices isslowly loosening.43 This poses anew a long-standing question of how to attemptdifferently to achieve some measure of social order, whether through reformedcriminal law administration, the market economy, and/or reconfigured socialwelfare policies.44 Even absent widely shared alternative conceptual frameworks to address this question, legislatures and courts, cognizant of the problems posed by expansivecriminalization and incarceration, have begun to intervene to scale back thereach of criminal law, at least with regard to certain categories of offenses andoffenders. Crime rates have remained relatively low, including violent crimerates, generating greater openness to less punitive, less prison-focused ap-proaches.45 The following sections briefly review the range of contemporarycriminal law reform efforts, first in the arenas of legislation, law enforcement,and litigation, and then in the context of specialized criminal courts, which willbe the focus of the remainder of this Article.
40. See, e.g., GIBBONS & KATZENBACH, supra note 36, at 11.
41. See PEW CENTER ON THE STATES, supra note 1, at 1 (also noting that among certain demographics correctional supervision rates are even starker—for example, one in eleven African-Americans areunder correctional control).
42. See, e.g., JOHN SCHMITT ET AL., CTR. FOR ECON. & POLICY RESEARCH, THE HIGH BUDGETARY COST OF INCARCERATION 2, 10 (2010).
43. See, e.g., Mary Bosworth, Penal Moderation in the United States?: Yes We Can, 10 CRIMINOLOGY & PUB. POL'Y 335, 335–36 (2011).
44. See Shelley Johnson Listwan et al., Cracks in the Penal Harm Movement: Evidence from the Field, 7 CRIMINOLOGY & PUB. POL'Y 423, 450 (2008).
45. See, e.g., Vanessa Barker, Explaining the Great American Crime Decline: A Review of Blumstein and Wallman, Goldberger and Rosenfeld, and Zimring, 35 LAW & SOC. INQUIRY 489 (2010); AllisonKlein, Drop in Violent Crime in D.C. Area and Some Other Major Cities Puzzles Experts, WASH. POST,July 20, 2009, http://www.washington post.com/wp-dyn/content/article/2009/07/19/AR2009071902154.
html; Evan Perez, Violent Crime Falls Sharply, WALL ST. J., May 25, 2010, http://online.wsj.com/article/SB100014240527487041135045752644324634 69618.html; see also FRANKLIN E. ZIMRING, THE GREATAMERICAN CRIME DECLINE 57–98 (2007) (critically analyzing the tendency to attribute crime decline toany single explicit policy change); Steven D. Levitt, Understanding Why Crime Fell in the 1990s: FourFactors that Explain the Decline and Six that Do Not, 18 J. ECON. PERSP. 163, 170–83 (2004)(explaining the decline in crime in terms of legalized abortion, increased police presence, moreincarceration, and decrease in crack cocaine use).
THE GEORGETOWN LAW JOURNAL A. REFIGURING HARSH JUSTICE: LEGISLATION, LAW ENFORCEMENT, LITIGATION There is an increasing openness on the part of legislatures, courts, and the public to experiment with criminal law administrative alternatives, but acrossthe numerous contexts of ongoing reform there is no common conception ofhow an alternative social-order-maintenance regime may operate without exten-sive reliance on conventional criminal law enforcement. Importantly as well,the ad hoc shifts in criminal law administration are occurring in the absence ofan account of how current shifts will be sustained in the event that oneegregious crime causes popular punitive sentiment to rise again.
Generally, recent legislation has shortened prison terms,46 recharacterized some of what were previously felonies to misdemeanors,47 and reduced sen-tences for nonviolent offenses.48 Additional measures divert people chargedwith lower-level drug offenses from carceral sentences, apply graduated sanc-tions to those who violate the rules on probation or parole, and focus resourceson reentry so as to avoid reincarceration.49 At the state level, along with other criminal law reforms, mandatory mini- mums have been eliminated in multiple jurisdictions. Michigan, for example,has done away with mandatory minimum sentences for the vast majority ofdrug offenses.50 Kansas revised its sentencing guidelines to mandate treatmentrather than prison for persons convicted of drug possession.51 In 2009, NewYork repealed the Rockefeller drug laws, which mandated sentences of at least 46. See, e.g., N.Y. CORRECT. L. §§ 270–273 (McKinney 2003 & Supp. 2012) (providing authority to counties and the city of New York to convene "local conditional release commissions" to considercandidates for early release); 61 PA. CONS. STAT. ANN. §§ 4503–4506 (West 2010) (permitting areduction of up to twenty-five percent of non-violent offender's sentence to encourage offender toengage in rehabilitative programming); see also Kirk Mitchell, First 10 Felons Set Free UnderColorado Early-Release Initiative, DENVER POST, Oct. 15, 2009, http://www.denverpost.com/ci_13564285; Riley Yates, Release Plan for Convicts Starts Slow, PITTSBURGH POST-GAZETTE, Sept. 26,2010, at A14. The Commonwealth of Pennsylvania has estimated that its Recidivism Risk ReductionIncentive (RRRI) program—created by the statutory provisions cited above—saves the state nearly$10,000 per RRRI inmate, for a total savings of more than $11 million over the first two years of theprogram's existence. BRET BUCKLEN & JACQUELINE YOUNG, PA. DEP'T OF CORR., RECIDIVISM RISKREDUCTION INCENTIVE 2010 REPORT 1 (2011).
47. See, e.g., Jessica Fender, More Rehab, Less Jail in Drug-Reform Measure, DENVER POST, Feb. 24, 2010, http://www.denverpost.com/ci_14459351 (reporting on Colorado legislation reducing offense ofpossession of between eight and twelve ounces of marijuana from a felony punishable by up to sixyears in prison to a misdemeanor); see also Debi Brazzale, HB10-1352: Lawmakers Unite Behind NewApproach to Drug Offenders, STATE BILL NEWS (Feb. 24, 2010), http://www.statebillnews.com/2010/02/hb10-1352-lawmakers-unite-behind-new-approach-to-drug-offenders/ (reporting on the same Coloradolegislation).
48. See, e.g., Mary D. Fan, Beyond Budget-Cut Criminal Justice: The Future of Penal Law, 90 N.C. L. REV. (forthcoming 2012) (working paper draft at 2), available at http://papers.ssrn.com/sol3/papers.cfm?abstract_ id⫽1804539.
49. GREENE & MAUER, supra note 3, at 1.
50. Id. at 3.
51. Id. Subsequently, Michigan achieved a twelve percent reduction in its prison population and Kansas a five percent reduction. See id. at 2.
DECARCERATION COURTS fifteen years for possession of as little as four ounces of a narcotic drug.52California Senate Bill X3 18, passed in 2009, introduced numerous changes toreduce reliance on imprisonment, including authorizing nonrevocable parole,increasing the minimum dollar quantity for some felony-level property crimes,and raising the number of "good-time credits" prisoners are eligible to earnthrough educational programs, treatment participation, or firefighting work.53 At the federal level, the Second Chance Act of 2007 provides federal funding to the states for new criminal justice initiatives aimed at reducing recidivismand reincarceration.54 The legislation supports appropriations for state andfederal programs providing employment assistance, substance abuse treatment,and housing along with other services for individuals with criminal convic-tions.55 And, in 2010, Congress passed a bill to reduce the disparity in crack andpowder cocaine sentencing from 100:1 to 18:1.56 Accompanying these legislative changes, police departments are increasingly participating in diversionary programs at the preindictment stage, seeking toreduce reliance on arrests, prosecution, and prison- and jail-based punishment.57Some police departments have transitioned to a "problem-oriented" or "predic-tive policing" model, which focuses police energies on particular areas wherecertain crimes are believed to be likely to occur.58 The focus is on understand-ing crime patterns in neighborhoods where a car theft or burglary has takenplace and allocating resources to prevent similar future acts in significant 52. See, e.g., JUDITH GREENE, JUSTICE STRATEGIES, POSITIVE TRENDS AND BEST PRACTICES IN CRIMINAL JUSTICE REFORM: A NATIONAL OVERVIEW 12–15 (2009); Casey Seiler, Paterson Signs Drug Law Reform,CAPITOL CONFIDENTIAL (Apr. 24, 2009, 11:22 AM), http://blog.timesunion.com/capitol/archives/13869/paterson-signs-drug-law-reform/ (quoting release from the governor's office regarding repeal of theRockefeller Drug Laws and relating "three significant pieces of the new laws," including first that "theycreate a drug treatment program to be administered by drug court judges"). From 1999 to 2009, NewYork reduced its prison population by twenty percent. GREENE & MAUER, supra note 3, at 5.
53. See Rosemary Gartner et al., The Past as Prologue?: Decarceration in California Then and Now, 10 CRIMINOLOGY & PUB. POL'Y 291, 296, 319 (2011); see also CAL. CITIES GANG PREVENTIONNETWORK, 18TH BULLETIN (2010), available at http://www.ccgpn.org/Publications/CA%20Cities%20Bulletin%2018.pdf (discussing SB X3 18). Interestingly, the California Correctional and PeaceOfficers Association did not publicly work against SB X3 18, though this may be due to thelegislation's limited anticipated effects on prison reliance. See Gartner et al., supra, at 319.
54. Pub. L. No. 110-199, 122 Stat. 657 (2008) (codified as amended in scattered sections of 18 and 42 U.S.C.). Like other legislative reforms enabling alternatives to incarceration, Second Chance Actprograms must establish that they are "evidence-based," requiring an evaluation using "evidenced-based methodology and outcome measures." Id. § 101(d)(3); see also id. §§ 3(a)(3), 113, 201(c)(2)(D),231(d)(3)(B), 241(b)(6).
55. Id. §§ 111, 112.
56. Fair Sentencing Act of 2010, Pub. L. No. 111-220, 124 Stat. 2372; see also Jim Abrams, Congress Passes Bill To Reduce Disparity in Crack, Powder Cocaine Sentencing, WASH. POST, July 29,2010, http://www.washington post.com/wp-dyn/content/article/2010/07/28/AR2010072802969.html.
57. See, e.g., DAVID M. KENNEDY, DON'T SHOOT: ONE MAN, A STREET FELLOWSHIP, AND THE END OF VIOLENCE IN INNER-CITY AMERICA (2011) (documenting Professor Kennedy's implementation of his"Operation Ceasefire" program in cities throughout the United States, with the cooperation of localpolice departments).
58. See, e.g., Erica Goode, Sending the Police Before There's a Crime, N.Y. TIMES, Aug. 15, 2011, THE GEORGETOWN LAW JOURNAL measure through design interventions such as improved lighting and visibility,or more frequent patrols.59 Shifts are also reflected in Supreme Court case law. Rehabilitation—for decades largely rejected as a theory of punishment—was invoked by the Courtin its 2010 opinion in Graham v. Florida, which extended proportionalityreview in the noncapital context to restrain penal severity.60 The Court categori-cally invalidated the sentence of life imprisonment without parole for juvenilesfor nonhomicide offenses on the grounds that the sentence rejected "altogetherthe rehabilitative ideal," providing "no chance for reconciliation with society,no hope" for one who committed a crime while still "a child in the eyes of thelaw."61 And in Brown v. Plata, a majority of Supreme Court justices joined anopinion upholding a specially convened three-judge district court's prison popu-lation reduction order and decrying the inhumane conditions for mentally ill andinfirm inmates in California's prisons.62 These developments are in line with recommendations to reduce dependence on incarceration and criminal supervision urged by liberal criminal law scholarsand criminologists since at least the mid-1990s.63 Many of these reforms havemore recently been embraced by political conservatives as well.64 Although these changing approaches and attitudes have affected every level of criminal law administration from policing to parole and probation, there isnonetheless a more general, persistent uncertainty about how better to adminis-ter criminal law so as to depart significantly from current practices—andperhaps more critically, how to expand and sustain support for alternatives toincarceration and conventional criminal supervision. Part of what is lacking iswhat criminologist Mary Bosworth describes as a "coordinated conceptualframework to help shift not only penal institutions and practices but also thosemore subtle structures of feeling and belief that have proven so effective inratcheting up punitive practice."65 Specialized criminal courts are engaged in the work of shaping coordinated 59. See, e.g., RONALD V. CLARKE, U.S. DEP'T OF JUSTICE, SHOPLIFTING 20 (2002), available at http://www.cops.usdoj.gov/pdf/e10011345.pdf; see also Neal Kumar Katyal, Architecture as CrimeControl, 111 YALE L.J. 1039, 1041–42 (2002); Cecelia Klingele et al., Essay, Reimagining CriminalJustice, 2010 WIS. L. REV. 953, 975–76.
60. 130 S. Ct. 2011, 2028–33 (2010).
61. Id. Subsequently, in its 2011 opinion in Tapia v. United States, the Court rejected rehabilitation as a ground on which to impose a lengthier federal prison sentence. 131 S. Ct. 2382, 2393 (2011)(holding that "a court may not impose or lengthen a prison sentence . . to promote rehabilitation").
62. 131 S. Ct. 1910, 1944–47 (2011).
63. See, e.g., PAUL BUTLER, LET'S GET FREE: A HIP-HOP THEORY OF JUSTICE 23–40 (2009) (citing studies exploring harms associated with high levels of incarceration); Dorothy E. Roberts, The Socialand Moral Cost of Mass Incarceration in African American Communities, 56 STAN. L. REV. 1271,1281–97 (2004) (citing and discussing scholarship focused on incarceration-related harms).
64. Perhaps most prominently, the right-wing criminal law reform campaign, "Right on Crime," is committed to markedly reducing reliance on incarceration. See, e.g., Savage, supra note 2.
65. See Bosworth, supra note 43, at 336; see also ANGELA Y. DAVIS, ARE PRISONS OBSOLETE? 21 (2003) ("The most difficult and urgent challenge today is that of creatively exploring new terrains ofjustice, where the prison no longer serves as our major anchor.").
DECARCERATION COURTS conceptual and institutional frameworks to inform criminal law reform pro-cesses, and there are at least four distinct reformist approaches represented inexisting specialized criminal courts. The following section explores the emer-gence of contemporary specialized criminal courts—their heterogeneous andcommon ambitions, histories, and ambits—before turning in the following Partto a typology and critical analysis of four reformist models at work in thesecourts.
B. CRIMINAL COURT REFORM: SPECIALIZED CRIMINAL COURTS The contemporary specialized criminal courts movement was spearheaded by state court judges dismayed with the miscarriages of justice they witnesseddaily in their courts. Although the progenitors of specialized criminal courtssought initially only to devise different solutions for their respective localjurisdictions, the specialized courts approach took off and the courts' influenceexpanded nationally. As specialized criminal courts spread across the UnitedStates, the courts came to reflect considerable institutional diversity.
Of the approximately 3,000 specialized criminal courts in the United States, the original and most numerous are drug courts. Beginning in the late 1980s andearly 1990s, judges dissatisfied with their role in processing drug cases began toconvene drug courts to reduce reliance on incarceration in favor of treatmentand other monitoring processes for drug-related offenses. Among the firstcontemporary adult specialized criminal courts, the Miami-Dade Drug Courtwas established in 1989 to reduce reliance on jail and prison in dealing withlow-level drug offenders.66 To promote these initiatives, state court judgescollaborated with prosecutors, public defense counsel, and ultimately statelegislatures and the federal government. Former Attorney General Janet Reno,when she was a local prosecutor in Florida, was instrumental in establishing theMiami-Dade Drug Court; and then, when Reno became Attorney General of theUnited States, she used her control over federal criminal justice spending tourge other states to adopt similar initiatives.67 Subsequently drug courts havereceived overwhelming bipartisan support.68 66. BERMAN & FEINBLATT, supra note 7, at 9; see also NOLAN, supra note 10, at 134. Although addiction itself cannot be criminalized, coerced treatment may serve as a response to conviction forpossession of narcotics in lieu of a jail or prison sentence. See Robinson v. California, 370 U.S. 660,667 (1962) (holding unconstitutional a California statute criminalizing narcotics addiction as cruel andunusual punishment in violation of the Eighth and Fourteenth Amendments). But see Powell v. Texas,392 U.S. 514, 532–33 (1968) (plurality opinion) (holding that the Texas statute rendering publicintoxication criminal did not constitute cruel and unusual punishment). The Nixon Administration'sTreatment Alternatives to Street Crime (TASC) program, a predecessor to the drug court movement,also provided for diversion from adjudication to drug treatment. But TASC differed in that it divertedcases from the courts for treatment, whereas drug courts generally supervise the treatment processitself. See NOLAN, supra note 10, at 36.
67. BERMAN & FEINBLATT, supra note 7, at 203 n.3.
68. See ROBERT V. WOLF, CTR. FOR COURT INNOVATION, ‘A NEW WAY OF DOING BUSINESS': A CONVERSA- TION ABOUT THE STATEWIDE COORDINATION OF PROBLEM-SOLVING COURTS 12 (2009) [hereinafter WOLF, ANEW WAY] ("[P]ositive evaluations have generated bipartisan support, allowing [Maryland's] statewide THE GEORGETOWN LAW JOURNAL At the National Drug Court Conference in 1998, Judge Jeffrey Tauber, Oakland, California's first drug court judge and then-President of the NationalAssociation of Drug Court Professionals, addressed his audience of more than2,500 drug court professionals, predicting the growing influence that drugcourts would wield in coming years: "[W]e have clearly proven through thework that we've done, through our numbers, through the effectiveness of ourcourts, that this field, this movement, this organization is ready to take centerstage, is ready to move its own agenda forward on . . the local, state, andnational levels."69 Indeed, in the years to follow drug courts sprung up around the country. As the number of drug courts increased, their institutional configurations came tovary substantially. Like the first Miami-Dade Drug Court program, drug courtsgenerally aim to help narcotics-involved offenders to stay off drugs by offeringthe opportunity to enter drug rehabilitation rather than incarceration, but manydrug courts increasingly address a range of other crimes presumably associatedwith drug use, such as shoplifting, prostitution, and burglary.70 Some drugcourts admit defendants with lengthy and serious felony records, while otherslimit eligibility to those with nonviolent minor charges.71 Shortly after the advent of the drug court movement, mental health courts, community courts, domestic violence courts, and, later, veterans courts, sexoffense courts, and reentry courts emerged in jurisdictions around the UnitedStates. Each of these categories of specialized criminal courts represents alargely judicially innovated attempt to work around perceived inadequacies inthe conventional criminal law administrative approach in the area in question—whether arrests and prosecutions of mentally ill individuals, veterans, personsaccused of domestic violence, alleged sex offenders, or parolees.
Criminal law administration within specialized criminal courts generally adopts a neo-realist jurisprudence, which its proponents call problem-solvingjustice or, to my mind more accurately, problem-oriented justice.72 This has led problem-solving committee to influence public policy . . " (paraphrasing Judge Jamey Hueston of theMaryland Problem-Solving Courts Commission)); ROBERT V. WOLF, CTR. FOR COURT INNOVATION, NEIGH- BORHOOD KNOWLEDGE: COMMUNITY PROSECUTION IN WASHINGTON D.C. 3–4 (2001) (noting that, during theClinton administration, Eric Holder, then deputy attorney general, championed community prosecu-tion); Anthony C. Thompson, Courting Disorder: Some Thoughts on Community Courts, 10 WASH.
U. J.L. & POL'Y 63, 84–85 (2002) (noting that Republican New York Mayor Rudy Giuliani introducedcertain problem-solving courts as part of a broader order-maintenance crime control policy); see alsoAmerica's Oldest War: The Efficacy of United States Drug Policy, 30 FORDHAM URB. L.J. 401, 411(2003) ("But we should have new ideas and support things that work, such as drug courts that havetreatment with accountability for those with addiction problems . . " (statement of Asa Hutchinson,former Republican legislator and then-Administrator of the Drug Enforcement Administration)); Adri-aan Lanni, The Future of Community Justice, 40 HARV. C.R.-C.L. L. REV. 359, 369 (2005).
69. See NOLAN, supra note 10, at 43–44.
70. See id. at 143.
71. See BERMAN & FEINBLATT, supra note 7, at 8.
72. Although many commentators refer to the problem-oriented approach of specialized criminal courts as "problem-solving justice," I prefer the term "problem-oriented justice" because most of the DECARCERATION COURTS some commentators to label all specialized criminal courts interchangeably,"problem-solving courts,"73 a term that connotes an aim on the part of thecourts to address problems both in the legal system and in the lives of defen-dants appearing before the courts.74 It is noteworthy that judges themselves have been the primary driving force behind the specialized-criminal-courts movement, working cooperatively withprosecutors, defense counsel, and other interested elected officials to convenespecialized criminal courts. As criminal law enforcement expanded during thelatter decades of the twentieth century and many more cases entered thecriminal courts, dockets swelled.75 More cases meant more pressure on judgesto resolve cases quickly, leading to reduced judicial morale.76 In response totheir deep dissatisfaction with their own role in criminal law administration,judges sought to devise an alternative legal institutional framework for at leastsome categories of criminal cases, obtaining initially the support of locallyelected prosecutors and, subsequently, as the specialized-criminal-court initia-tives expanded, broader legislative support.77 In promoting specialized courtprograms as a criminal law reform standard, judges and other court advocatesincreasingly have collaborated with specialized court consultants, such as the relevant "problems" are unlikely to be "solved" by the courts and because the conceptual origins of thisapproach lie in problem-oriented policing. See Greg Berman & Aubrey Fox, The Future of Problem-Solving Justice: An International Perspective, 10 U. MD. L.J. RACE, RELIGION, GENDER & CLASS 1(2010) (exploring the emergence of the rubric of problem-solving justice and the nature of some of theprofound problems the courts aim to address).
73. See, e.g., PAMELA M. CASEY & DAVID B. ROTTMAN, NAT'L CTR. FOR STATE COURTS, PROBLEM- SOLVING COURTS: MODELS AND TRENDS (2003); JUSTICE POLICY INST., ADDICTED TO COURTS: HOW AGROWING DEPENDENCE ON DRUG COURTS IMPACTS PEOPLE AND COMMUNITIES 2 (2011).
74. BERMAN & FEINBLATT, supra note 7, at 5 ("[A] case is a problem to be solved, not just a matter to be adju[di]cated."); GREG BERMAN & JOHN FEINBLATT, CTR. FOR COURT INNOVATION, PROBLEM-SOLVINGCOURTS: A BRIEF PRIMER 3 (2001) ("Problem-solving courts use their authority to forge new responses tochronic social, human and legal problems—including problems like family dysfunction, addiction,delinquency and domestic violence—that have proven resistant to conventional solutions."); NOLAN,supra note 10, at 141 ("[T]he issue of guilt/innocence is not of concern." (quoting Judge McKinney));Kay L. Levine, The New Prosecution, 40 WAKE FOREST L. REV. 1125, 1127 (2005) ("Problem-orientedapproaches challenge law enforcement personnel to abandon their traditional reactive orientations infavor of proactive efforts to solve social problems . . "). Public defenders have also proposed moreproblem-oriented advocacy, focusing on "holistic" client-centered defense rather than on victory in aparticular case. See, e.g., Robin Steinberg & David Feige, Cultural Revolution: Transforming thePublic Defender's Office, 29 N.Y.U. REV. L. & SOC. CHANGE 123, 124 (2004).
75. See BERMAN & FEINBLATT, supra note 7, at 23–24.
76. Criminal law reformers convened specialized criminal courts as thousands of new cases entered the system. The greatest increase in case filings was in the area of domestic relations where, between1984 and 1998, cases increased by seventy-five percent. These increases were caused in part byexpanding criminal law enforcement, which resulted in more police officers and more cases wentforward due to expanded prosecutorial funding and "‘no-drop' prosecution policies." See id. at 23–26.
77. See Eric Lane, Due Process and Problem-Solving Courts, 30 FORDHAM URB. L.J. 955, 955–56 (2003) (quoting Justice Kathleen A. Blatz of Minnesota's Supreme Court and citing BERMAN &FEINBLATT, supra note 74). The Honorable Jonathan Lippman, Chief Judge of the New York Court ofAppeals, has likewise described New York's specialized criminal courts as "a judicially-created,statewide architecture." Jonathan Lippman, How One State Reduced Both Crime and Incarceration, 38HOFSTRA L. REV. 1045, 1053 (2010).
THE GEORGETOWN LAW JOURNAL Center for Court Innovation, a New York City-based organization, and withlegal academics.78 State legislatures and the U.S. Congress have endorsed the specialized courts approach by incorporating diversionary specialized court sentencing into statu-tory provisions and by authorizing state and federal funding for specializedcriminal courts. In this regard, the specialized courts movement may be under-stood as a widely endorsed work-around of political process defects: whereas"tough on crime" norms make decriminalization or other downscaling of punish-ment less available, specialized criminal courts allow officials to appear "smart"rather than "soft" on crime. For example, in 2000 Congress enacted America'sLaw Enforcement and Mental Health Project, which authorized federal fundsfor states and counties to develop mental health courts and diversion programsrather than more directly tackling the overincarceration of mentally ill per-sons.79 Financed with a combination of state and federal funding, mental healthcourts aim to address the disproportionate number of persons with mentalillness under criminal supervision and to reduce reliance on incarceration inresponding to the conduct of mentally ill individuals. Although the first genera-tion of mental health courts largely excluded persons charged with violentoffenses, some mental health courts now accept individuals facing violentfelony charges.80 Also in 2000, the Office of Justice Programs' Reentry CourtInitiative funded reentry courts to facilitate ex-convicts' returns from prison totheir respective communities of residence.81 Reentry courts convene team-basedefforts that typically involve a judge, a social worker, and a mental healthprofessional, who design a diversionary social service supervisory regimen forparolees and help to facilitate access to employment and housing.82 Veterans courts, convened beginning in the mid-2000s, are specialized courts established to address socially disruptive behavior on the part of veterans, manyof whom are suffering mental health problems arising from combat-relatedpost-traumatic stress disorder.83 Those accused of violent crimes are in someinstances able to participate in veterans courts, which rely on alternative sen-tences involving predominately mental health and medical treatment along with 78. See, e.g., CTR. FOR COURT INNOVATION, www.courtinnovation.org.
79. Pub. L. No. 106-515, 114 Stat. 2399 (2000).
80. See Henry J. Steadman et al., From Referral to Disposition: Case Processing in Seven Mental Health Courts, 23 BEHAV. SCI. & L. 215, 220 (2005); Shauhin Talesh, Mental Health Court Judges asDynamic Risk Managers: A New Conceptualization of the Role of Judges, 57 DEPAUL L. REV. 93, 112(2007).
81. See JUSTICE POLICY INST., supra note 73, at 18.
82. See ROBERT V. WOLF, CTR. FOR COURT INNOVATION, REENTRY COURTS: LOOKING AHEAD 11–12 (2011); Reentry Courts: An Emerging Trend, REENTRY POLICY COUNCIL (Sept. 20, 2005), http://reentrypolicy.org/announcements/ reentry_courts_emerging_trend.
83. See Michael Daly Hawkins, Coming Home: Accommodating the Special Needs of Military Veterans to the Criminal Justice System, 7 OHIO ST. J. CRIM. L. 563, 563–70 (2010); William H.
McMichael, The Battle on the Home Front: Special Courts Turn to Those Who Served To HelpTroubled Vets Regain Discipline, Camaraderie, ABA J., Nov. 2011, at 42–48.
DECARCERATION COURTS other services.84 In contrast to drug courts, mental health courts, and veterans courts, domestic violence courts and sex offense courts generally operate with less reference torehabilitative goals. Instead, domestic violence and sex offense courts, for themost part, seek to provide individually tailored monitoring of defendants chargedand/or convicted in domestic violence or sex offense cases and, in someinstances, more meaningful service provision for complainants. But some domes-tic violence and sex offense courts also seek to reduce reliance on incarceration.
Domestic violence and sex offense courts with an incarceration-reduction mis-sion intend for monitoring and services to serve as an alternative to jail- orprison-based sentencing and to work to break preexisting cycles of violence andabuse so as to limit levels of reincarceration. As Brooklyn's Felony DomesticViolence Court Judge John Leventhal explained: I saw people going to jail for two years for not paying child support, which isa condition of their order of protection . . [and] I was . . surprised to seesuch a large violation and probation calendar. I wanted to cut that down. Howdo we cut that down? We bring them back while they're on probation, beforethey're really violating in a bad way, to keep them on the right track.
. . For the first four years or five years that we were doing it, we had half theviolation rate of the general probation population—which is incredible consid-ering that you have targeted victims and people who know each other. Sincethen I think our violation rate has gone down even further.85 So in domestic violence courts, such as Judge Leventhal's, judicial monitoringaims to reduce carceral sentencing, reoffending, and reincarceration, even thoughthese goals were not the explicit initial motivations for convening most domes-tic violence courts.
Likewise, sex offense courts have been promoted to more effectively monitor persons accused or convicted of sex offenses.86 Yet, some of these courtssimultaneously seek to shift criminal law administration in sex offense cases to 84. See, e.g., Megan McCloskey, Veterans Court Takes a Chance on Violent Offenders, STARS & STRIPES (Sept. 14, 2010), http://www.stripes.com/veterans-court-takes-a-chance-on-violent-offenders-1.118182; see also Kathleen Kreller, Idaho Court Would Assist Veterans Who Land in the Legal Systemin Getting Help—Instead of Hard Time, IDAHO STATESMAN (Apr. 17, 2011), http://www.idahostatesman.
com/2011/04/17/1612614/idaho-considers-veterans-court.html.
85. Interview by Carolyn Turgeon with Judge John Leventhal, Brooklyn Felony Domestic Violence 86. When asked what he thought the future of the sex offense courts would be, Judge James McCarthy of the Oswego County Sex Offense Court replied: "I think you will find a sex offender courtin every county in New York and every state in this country. Sex offender courts are going to expandbecause the public wants to see compliance and monitoring by the criminal justice system of sexoffenders that are in the community." Interview by the Center for Court Innovation with Judge JamesMcCarthy, Oswego County Sex Offense Court, available at http://www.courtinnovation.org/research/james-mccarthy-judge-oswego-county.
THE GEORGETOWN LAW JOURNAL make the criminal supervisory regime more reasonable and less likely to resultin reincarceration for technical violations. Contrary to public perception, mostconvicted sex offenders receive little prison time in their initial sentence and aresubject primarily to terms of probation or a short carceral sentence followed byparole.87 Still, in many jurisdictions the vast majority of convicted sex offend-ers—even those charged only with an offense stemming from public exposureor sex with a person just a few years younger than the accused—are subject tosex offender registration and residential restrictions that make life extremelydifficult and may encourage criminal behavior by socially isolating sex offend-ers.88 Sex offense courts permit modifications of certain of these restrictionswhere doing so is thought to be reasonable, so that the response to personscharged and convicted of sex offenses may unfold with greater moderation andrationality.89 As Judge James McCarthy, the first presiding judge of the OswegoCounty Sex Offense Court in New York has explained, the ambition of his courtin offering a more individualized monitoring regime for convicted sex offendersis in part to make it such that "the sex offender can live somewhere and worksomewhere, without being demonized, while still being closely supervised."90The sex offense courts may also be conceptualized in some instances, then, asan attempt to work around existing criminal law regimes that appear to judgesand other interested persons to be irrational or excessively harsh, where morethoroughgoing legislative modification is unavailable. The courts aim to devisean alternative regime to mitigate the perceived ill effects of the conventionalprocesses and to develop a different approach that may have as an importantside effect reduced reliance on incarceration in response to technical viola-tions.91 There are, as of this writing, in jurisdictions across the United States, approximately 300 mental health courts,92 200 domestic violence courts, andthirty community courts, more than 2,000 drug courts, and in excess of 500 87. See, e.g., REBECCA THOMFORDE-HAUSER & JULI ANA GRANT, CTR. FOR COURT INNOVATION, SEX OFFENSE COURTS: SUPPORTING VICTIM AND COMMUNITY SAFETY THROUGH COLLABORATION 1–2 (2010); seealso LAWRENCE A. GREENFELD, BUREAU OF JUSTICE STATISTICS, SEX OFFENSES AND OFFENDERS: AN ANALYSIS OF DATA ON RAPE AND SEXUAL ASSAULT (1997).
88. See, e.g., Sarah E. Agudo, Comment, Irregular Passion: The Unconstitutionality and Inefficacy of Sex Offender Residency Laws, 102 NW. U. L. REV. 307, 308–11 (2008); see also Fourth AmendedComplaint, Whitaker v. Perdue, No. 4:06-cv-140-CC (N.D. Ga. Oct. 14, 2008), available at http://www.schr.org/files/post/FILED%20FAC.pdf (challenging Georgia's sex offender registry on behalf of aclass of convicted sex offenders, the named plaintiff of which is twenty eight-year-old Wendy Whitaker,who is on the registry because at the age of seventeen she engaged in a single consensual act of oral sexwith a fifteen-year-old boy).
89. See, e.g., THOMFORDE-HAUSER & GRANT, supra note 87, at 5–6.
90. See Interview by the Center for Court Innovation with Judge James McCarthy, supra note 86.
91. A technical violation is a probation or parole rule infraction—such as a missed curfew, missed probation counseling appointment, or dirty urine analysis—which does not rise to the level of acriminal offense. 92. See, e.g., PAUL HIGGINS & MITCHELL B. MACKINEM, PROBLEM-SOLVING COURTS: JUSTICE FOR THE TWENTY-FIRST CENTURY? at ix (2009).
DECARCERATION COURTS other specialized criminal courts including sex offense and veterans courts.93Those states with numerous specialized criminal courts span the country, includ-ing jurisdictions as diverse as Alaska, California, Indiana, and New York.94There is no single foundational document to which all specialized criminalcourts refer, and no unified theory that captures their complicated interrelation-ships and diverse projects. But although the initial impetuses for conveningspecialized criminal courts differed, most of their founders share in common thehope of devising better substantially non-carceral approaches to criminal lawadministration, at least for certain categories of offenders.95 Specialized criminal courts have now reached some measure of maturity and there are at least four legal institutional and conceptual reformist models towhich the existing courts roughly correspond. In fact, what may make special-ized criminal courts politically palatable is also what makes their eventualoutcome uncertain: their form is sufficiently open so as to incorporate any orseveral of these four often quite divergent reformist approaches.96 As a result,what specialized criminal courts ultimately portend for U.S. criminal lawremains ambiguous, a matter over which there should be much more rigorousand reasoned debate than has occurred to date.
II. FOUR REFORMIST MODELS AT WORK IN SPECIALIZED CRIMINAL COURTS This Part introduces a typology and critical theoretical analysis of four criminal law reformist models at work in specialized criminal courts—(a) atherapeutic jurisprudence model; (b) a judicial monitoring model; (c) an ordermaintenance model; and (d) a decarceration model—with particular emphasison the models' respective aspirations, potential unintended harms, and reformistpossibilities. This Part argues that, whereas the first three more predominantmodels possess characteristics that threaten a range of unintended and harmfulconsequences, the fourth model—a decarceration model—holds considerablepromise to facilitate broader transformative criminal law reform.97 The follow-ing Part, Part III, explores in greater detail three criminal law reform strategiesthat a decarceration model may set in motion.
93. See, e.g., PORTER ET AL., supra note 7, at 1.
94. See id.
95. BERMAN & FEINBLATT, supra note 7, at 6.
96. See Dan M. Kahan, The Cognitively Illiberal State, 60 STAN. L. REV. 115, 145–48 (2007) (arguing that law and policy innovations that contain multiple meanings, or are "expressively overdeter-mined," are most likely to be taken up).
97. In contrast to the typology introduced here, political scientist Lawrence Baum identifies three types of specialized criminal courts: those courts convened to administer criminal law with (1) moreharshness; (2) more lenity and/or treatment; or (3) both. See BAUM, supra note 6, at 96–97. My analysispermits closer understanding of the mechanisms that may drive particular outcomes across differentspecialized criminal courts.
THE GEORGETOWN LAW JOURNAL A. THERAPEUTIC JURISPRUDENCE MODEL Specialized criminal courts adopting a therapeutic jurisprudence model are at work in every state in the country and increasingly in a wide range of foreignjurisdictions.98 This model draws heavily on a theoretical framework developedby law professors David Wexler and Bruce Winick.99 Wexler and Winick'sfundamental premise is that law may operate in ways that are therapeutic oranti-therapeutic so as to improve or undermine people's psychological well-being.100 According to Wexler and Winick, all other things being equal, legalactors should seek to promote therapeutic outcomes over anti-therapeutic ones.
In urging attention to the therapeutic consequences of legal arrangements,Wexler and Winick recommend: "[W]e should . . see if the law could bereshaped to make it into more of a healing force, a therapeutic force."101 In a certain respect, in the criminal law context a therapeutic jurisprudence model is a repackaging of a rehabilitative theory of sentencing that also borrowsfrom restorative justice approaches, but therapeutic jurisprudence is fartherreaching.102 The judge in a therapeutic specialized criminal court does notsimply assign a sentence that aims to rehabilitate or serve a therapeutic orrestorative function. Instead, the court proceedings themselves—whether throughthe judge's warm encouragement or "tough love"—are intended to promotetherapeutic outcomes. The entire legal process—in fact, the entire institutionaloperation of the court as such—is to be reconceived on the therapeutic model.
Although Wexler and Winick make clear that therapeutic concerns ought notnecessarily take precedence over other considerations, they do not provide anyconcrete manner to evaluate or rank therapeutic priorities relative to othermatters, leading their adherents in therapeutic criminal courts to prioritizetherapeutic concerns over others in at least certain contexts when conflictsbetween contending values emerge.103 Accordingly, to the extent earlier cri-tiques leveled against rehabilitative punishment and indeterminate sentencingmay apply to a therapeutic jurisprudence model, they apply with even greaterforce because, on a therapeutic jurisprudence model, the rehabilitative or thera-peutic ambition stretches beyond sentencing and punishment to nearly every 98. See, e.g., NOLAN, supra note 7; see also NOLAN, supra note 10.
99. See, e.g., Hora et al., supra note 12, at 439; Peggy Fulton Hora & William G. Schma, Therapeutic Jurisprudence, 82 JUDICATURE 8 (1998); David Rottman & Pamela Casey, TherapeuticJurisprudence and the Emergence of Problem-Solving Courts, NAT'L INST. JUST. J., July 1999, at 12,14–15.
100. See Bruce J. Winick, The Jurisprudence of Therapeutic Jurisprudence, in LAW IN A THERAPEUTIC KEY: DEVELOPMENTS IN THERAPEUTIC JURISPRUDENCE 645, 648 (David B. Wexler & Bruce J. Winick eds.,1996).
101. Bruce J. Winick, Panel Remarks, The Changing Face of Justice: The Evolution of Problem Solving, 29 FORDHAM URB. L.J. 1809, 1809 (2002).
102. See JAMES L. NOLAN, JR., THE THERAPEUTIC STATE: JUSTIFYING GOVERNMENT AT CENTURY'S END 80–83 (1998).
103. See, e.g., E. Lea Johnston, Theorizing Mental Health Courts, 89 WASH. U. L. REV. (forthcoming DECARCERATION COURTS aspect of the court proceedings.104 Once a defendant opts into a specialized therapeutic criminal court, "all of the major players in the courtroom—judge, prosecutor, and defense attorney—explicitly acknowledge that the goal is to change [the defendant's] behavior,moving [the defendant] from addiction to sobriety and from a life of crime tolaw-abiding behavior."105 In contrast to the traditional adversarial model of thedisengaged, dispassionate judge whose primary task is to decide cases fairly andimpartially,106 therapeutic judges are active and engaged, invested in acquiringexpertise regarding the problems they address. On a therapeutic model, thespecialized criminal court judge—whether in a drug court, mental health court,therapeutic sex offense court,107 or another type of specialized therapeuticcriminal court—engages in a direct, emotional, and frequently effusive mannerwith defendants, who are often referred to as the courts' "clients." In Washington, D.C.'s Mental Health Diversion Court, for example, Judge Linda Kay Davis greets defendants by warmly asking them how they are doingand how they are feeling.108 She encourages them in their accomplishmentsand, for a sustained period of good behavior—clean drug tests and regularattendance of psychotherapy—she gives them a rose, a certificate, and a coin.
The D.C. Mental Health Diversion Court is part of the Criminal Division and exercises jurisdiction over defendants who have been diagnosed with mentalillness and who may qualify for deferred prosecution while undergoing mentalhealth treatment. Many defendants in the D.C. Mental Health Diversion Courtalso suffer from co-occurring drug addiction.
In demonstrating her heartfelt concern for the defendants/clients in her court, Judge Davis descends from the bench to deliver her gifts to those who success-fully complete her prescribed treatment program. She explains that the coin is toremind them of their hard work, though it carries no monetary value. In thespirit of therapeutic jurisprudence, Judge Davis asks defendants who fail drug 104. The rehabilitative model "fell into disfavor" because "it produced serious disparities in the sentences imposed on similarly situated defendants" and because many came to believe "that thesystem's attempt to achieve rehabilitation of offenders had failed." See Tapia v. United States, 131 S.
Ct. 2382, 2387 (2011) (quoting Mistretta v. United States, 488 U.S. 361, 365–66 (1989)) (internalquotation marks omitted).
105. BERMAN & FEINBLATT, supra note 7, at 9; see also id. at 34–35.
106. See Judith Resnik, Managerial Judges, 96 HARV. L. REV. 374, 376 (1982) ("[J]udges are not supposed to have an involvement or interest in the controversies they adjudicate. Disengagement anddispassion supposedly enable judges to decide cases fairly and impartially.").
107. Christopher Bruell, Sex Offender Courts: Implications for the Future (paper presented at the annual meeting of the American Society of Criminology (ASC), Los Angeles Convention Center, LosAngeles, California, Nov. 1, 2006) (summary available at http://citation.allacademic.com/meta/p127257_index.html?PHPSESSID⫽e4d700de960ebe2892f7e9570253eca9) ("[I]t seems reasonable tobelieve that we should create and utilize specialized sex offender courts, which can address sexoffenders' underlying addictions through treatment and graduated levels of community supervision.
These specialized sex offender courts should be based upon the therapeutic jurisprudence approachused in drug courts and other problem-solving courts.").
108. Author's Notes, observation of D.C. Mental Health Diversion Court, July 6, 2011 (afternoon session) (on file with author).
THE GEORGETOWN LAW JOURNAL tests or other court requirements "what the court can do to help" and extendsand intensifies their period of court supervision.109 The actual therapeutic or other effects of this engagement remain uncertain.
Judge Davis, for instance, who was once a public defender at D.C.'s PublicDefender Service, conducts her court in a therapeutic manner that appearseminently humane, though she has no formal psychotherapeutic expertise.
Illustrating the bizarre quality and uncertain psychotherapeutic impact of merg-ing judicial and therapeutic roles, one afternoon in mental health court, JudgeDavis greeted a defendant/client with smiles and congratulations, telling thementally ill defendant/client how "proud" she was of her, and how the defendant/client was "really doing well," about which the judge relayed "delight." But theclerk interrupted the exchange to point out to the judge that the day prior thedefendant/client had tested positive for cocaine. Judge Davis then desisted inher praise, extended the defendant/client's term in the criminal supervisoryprogram, issued a stern warning about noncompliance, and ordered the defendant/client to talk to the assigned therapist about the relapse. The mentally illdefendant/client looked visibly pleased at the judge's initial encouraging ap-proval and then visibly distraught by the abrupt turn of events. The defendant/client reported to the judge directly (not through counsel) having difficultyfinding an available individual therapist to comply with the court's orders asnone were available, and she related that she was hanging out with drug users,which made it hard for her to resist using drugs. It appeared unclear whether thedefendant/client understood that the role of the judge was distinct from that of amental health care provider or other counselor. The judge listened in front of thefull courtroom and then called the next defendant/client.
Whatever uncertainties attend Judge Davis's therapeutic courtroom methodol- ogy—and indeed she appears compassionate and well-intentioned in her deal-ings with the defendants/clients who appear before her—an additional potentialproblem posed by the therapeutic jurisprudence model is that, in promotingitself as a useful treatment approach, it may cause other criminal justice systemactors—particularly police and prosecutors—to likewise view the court as atreatment outlet. This may lead relatively minor cases to go forward, offensesthat perhaps ought not to be prosecuted in the first instance. But these casescome to the court for extended court proceedings rather than just being dropped,or the defendants simply referred for treatment because the court itself, ratherthan the social service organization conducting therapeutic treatment, is under-stood to be a central part of the therapeutic process.
This potential "net widening"110 effect of a therapeutic model of specialized 109. See id.
110. See, e.g., STANLEY COHEN, VISIONS OF SOCIAL CONTROL: CRIME, PUNISHMENT, AND CLASSIFICATION (1985) (exploring, in one of the first studies of its kind, how development of criminal law administra-tive alternatives may produce a widening "net" of penal control); see also Joel Gross, Note, The Effectsof Net-Widening on Minority and Indigent Drug Offenders: A Critique of Drug Courts, 10 U. MD. L.J.
RACE, RELIGION, GENDER & CLASS 161, 162 (2010).
DECARCERATION COURTS criminal law administration underscores that criminal courts are part of aworking institutional and social system, not simply sites for interpersonalconduct modification.111 As criminal law scholar Guyora Binder has persua-sively argued: "Punishment is not a behavior, but an institution. It is part of asystem that involves conduct norms, an authoritative procedure for generatingthese norms, an authoritative procedure for decisions to impose sanctions, andsome measure of practical power over persons or resources."112 When special-ized criminal courts operate on a therapeutic model they exert system-wideinstitutional effects, likely shaping what cases are brought to criminal court, andto which agencies' treatment resources are allocated. And all the while, therapeu-tic judges exercise substantial power over defendants/clients.
Given the authoritative force of therapeutic judges' determinations, a further set of problems may arise if judges administering criminal law on a therapeuticmodel believe themselves to be acting in the therapeutic interests of thedefendants/clients before them but are not as humane as Judge Davis. Accountsof the Glynn County, Georgia Drug Court suggest that the former presidingjudge there wielded her therapeutic judicial authority with an iron fist.113 Forinfractions as minor as a first offense of forging two checks totaling 100 dollars,one young woman was sentenced to ten and a half years under criminalsupervision: five and one half years in the Glynn County Drug Court, includingfourteen months behind bars, and then an additional six months locked up,followed by four and one half years on probation.114 This young woman, Lindsay Dills, forged two of her father's checks, entered the Glynn County Drug Court, missed a curfew, and failed a drug screen. As aconsequence, without further ado, she spent seven days in jail. Dills reportedthat Drug Court Judge Amanda Williams "would flip out every time [Dills]went before her. . [S]he was just . . screaming . . in court. . [S]he's stand-ing behind the bench, with a microphone and screaming . . "115 For subse-quent technical violations, such as a missed curfew or dirty urine tests, Dills 111. See, e.g., LAWRENCE M. FRIEDMAN, CRIME AND PUNISHMENT IN AMERICAN HISTORY 6 (1993).
112. See Guyora Binder, Punishment Theory: Moral or Political?, 5 BUFF. CRIM. L. REV. 321, 321 113. See Ira Glass, Very Tough Love, THIS AM. LIFE (Mar. 25, 2011), http://www.thisamericanlife.org/ 114. See id. Judge Amanda Williams has challenged this characterization of her court on a number of different grounds. See, e.g., Press Release, Georgia Judge Rebuts Public Radio Story on Drug Court,(Apr. 14, 2011), available at http://www.atlawblog.com/wp-content/uploads/2011/04/Williams-Rebuts-Glass-Press-Release-April-14-2011.pdf. In response, attorneys for "This American Life" maintain thebasic accuracy of the program's account of the Glynn County, Georgia Drug Court, and Judge Williamshas subsequently retired after facing state disciplinary charges. See Letter from Michael M. Conway,Foley & Lardner LLP, to Prof. David G. Oedel, Mercer Univ. Law Sch. (Apr. 15, 2011), available athttp://www.thisamericanlife.org/sites/default/files/Foley_response_ to_Oedel_April_15_2011.pdf; Mar-tha Neil, Longtime Ga. Judge Facing Disciplinary Case After ‘This American Life' Broadcast WillRetire, ABA JOURNAL (Dec. 20, 2011, 5:28 PM), http://www.abajournal.com/mobile/article/longtime_ga._judge_facing_disciplinary_case_following_this_american_li/.
115. See Glass, supra note 113. THE GEORGETOWN LAW JOURNAL reported spending 51 days, 90 days, and 104 days incarcerated, until JudgeWilliams sent Dills away on an "indefinite sentence."116 In Dills' own words: So I get to the jail house and I call my dad immediately . . from the payphone that's in the booking area. And I hear the phone ring . . where thebooking area is. And they answer it and I heard them say, "Dills." . . So I'mon the phone and they said, "Dills hang that phone up." And I'm like, "OK."[S]o I turn around and the[y] tell me that Judge Williams has now called andordered me to have no further contact: no phone, no visitation and no mail.
And that I'd be put in their isolation cell. And I'm like, "How long?"[T]hey're like, "We don't know." And I'm like, "Well for the whole 28 daysthat I'm here?" And they said, "Well your order is now indefinite.". .
. . I cried a lot . . I was like, "How is this happening? How is this ethi-cal? . . Have I killed someone that I don't know about?" . . But there'snothing I can do about it. Because I can't even use the phone. I can't evensend a letter.117 Dills reportedly came to the attention of the jail authorities when she attemptedsuicide after weeks in isolation by cutting open her wrists.118 Judge Williams's interest in starting a drug court was personal: she had addiction in her own family and believed in "tough love."119 Although theNational Association of Drug Court Professionals discourages such a punitiveapproach, the malleability of therapeutic jurisprudence when administered bylay-therapist judges makes it all too likely that judges will confuse therapy withpunishment and that their unchecked retributive impulses will be brought tobear under the guise of therapeutic jurisprudence.120 Such potential miscarriages of therapeutic jurisprudence expose another sig- nificant overlooked feature of specialized criminal courts operating on a therapeu-tic model. Therapeutic courts attempt to rid themselves of the various traditionalapproaches to criminal law administration and punishment—retribution, deter-rence, incapacitation121—in favor of a therapeutic approach. While conven-tional criminal courts generally (at least in principle) administer criminal lawwith self-conscious reference to a compound of retributive, deterrent, and other 116. See id.
117. See id.
118. See id.
119. See id.
120. Even if portions of the widely-reported account of Judge Williams' drug court are particularly egregious and unusual, the question the report raises remains: that is, whether a court configured on anon-adversarial, anti-formalist, psychotherapeutic model with largely unconstrained judicial discretionposes the inherent risk of the sorts of outcomes attributed to the Glynn County, Georgia Drug Court.
This Article does not purport to identify any definite outcomes that will necessarily follow from courtsadopting a therapeutic jurisprudence model but rather aims to develop a critical theoretical frameworkwithin which to think about the possibilities and perils of variously configured specialized criminalcourts.
121. See, e.g., JOSHUA DRESSLER, CASES AND MATERIALS ON CRIMINAL LAW 30–48 (5th ed. 2009).
DECARCERATION COURTS punishment approaches, specialized criminal courts adopting a therapeutic castseek to purify the administration of criminal law to one putatively rehabilitative"therapeutic" variant.122 The risk of this attempted purification is that it isdifficult to disentangle deterrent, therapeutic, and retributive impulses in crimi-nal punishment,123 and so cordoning off certain courts as purely involved intherapeutic interventions may both misstate what is actually occurring in thosecourts and undermine judicial self-consciousness about whether the punitiveeffects of particular decisions are proportional to the offending conduct and nogreater than necessary to deter offending behavior.124 Indeed, some judgesadministering specialized criminal courts on a therapeutic model label theircourts' sanctions "smart punishment" but propose that "[s]mart punishment isnot really punishment at all, but a therapeutic response."125 Although the problem of disproportionate punitiveness might in principle be resolved by having all specialized criminal courts adopt sentencing ceilings fortechnical violations, courts operating on a therapeutic model embrace an anti-formalist, problem-oriented, discretionary approach that rejects such externallyimposed, pre-fixed constraints. This model, when it comes to predominate overother approaches to criminal law administration, thus threatens to place judgeswith extraordinary power in a position where they act in what they perceive tobe defendants'/clients' therapeutic interests but with unchecked, potentiallypunitive effects, unimpeded by principles of proportionality characteristic of aretributive theory of punishment. This is all the more troubling because thesejudges may lack formal psychotherapeutic expertise and many are likely ex-hausted by the undoubtedly difficult work of dealing with criminally accusedaddicted or mentally ill individuals, often in under-resourced environments. Therelaxation of procedural safeguards as part of an anti-formalist, team-based, 122. Compare the purely therapeutic judicial orientation to the composite sentencing approach provided for under the Sentencing Reform Act of 1984, Pub. L. No. 98-473, ch. 2, according to which afederal sentencing judge is required to: [C]onsider . . (2) the need for the sentence imposed (A) to reflect the seriousness of theoffense, to promote respect for the law, and to provide just punishment for the offense; (B) toafford adequate deterrence to criminal conduct; (C) to protect the public from further crimesof the defendant; and (D) to provide the defendant with needed educational or vocationaltraining, medical care, or other correctional treatment in the most effective manner.
18 U.S.C. § 3553(a) (2006). As the U.S. Supreme Court explained in Tapia v. United States: "Thesefour considerations—retribution, deterrence, incapacitation, and rehabilitation—are the four purposesof sentencing generally, and a court must fashion a sentence to achieve these purposes . . " 131 S. Ct.
2382, 2387 (2011) (internal quotation marks omitted).
123. See, e.g., Louis Michael Seidman, Soldiers, Martyrs, and Criminals: Utilitarian Theory and the Problem of Crime Control, 94 YALE L.J. 315, 346–48 (1984) (examining how, in order to deter, criminalsanctions must also communicate moral blame, necessarily intertwining utilitarian and retributiveapproaches to punishment).
124. See Richard C. Boldt, The "Tomahawk" and the "Healing Balm": Drug Treatment Courts in Theory and Practice, 10 U. MD. L.J. RACE, RELIGION, GENDER & CLASS 45, 65 (2010) (noting that"[under] treatment/punishment hybrids . . therapeutic impulses tend to collapse into punitive prac-tices").
125. See Hora et al., supra note 12, at 469–70.
THE GEORGETOWN LAW JOURNAL therapeutic approach only stands to exacerbate these problems if judges are notparticularly conscientious.
A further limitation of the therapeutic jurisprudence model has to do with the difficulty of bringing a therapeutic court-based approach to scale, even werethat to be a desirable outcome—a matter on which the preceding analysisshould cast some doubt. Although the reformist potential of a therapeutic modelrests on being able to administer therapy to individual defendants through thecourts, these courts only address a small fraction of drug cases or other relevantcategories of cases in the system. As of 2005, the number of individuals in drugcourt programs was 70,000, as compared to a population on probation of aboutfour million individuals, many of whom are drug-involved offenders.126 Toreach even ten percent of individuals serving a probationary sentence, thenumber of therapeutic drug courts would need to increase enormously.127 TheAkron Mental Health Court as of 2004 handled at one time approximately 120clients, only a small fraction of the many thousands of mentally ill individualslikely to be caught up in Ohio's criminal justice system.128 The LouisianaMental Health Court as of 2009 had eighty-five participants and operated oneday per week.129 Administering therapeutic jurisprudence through conveningseparate specialized criminal courts is also relatively costly, further decreasingthe likelihood that it will be possible to bring this model to scale even were thisto be a sought-after result.
In any event, there is considerable cause to question whether specialized criminal courts adopting a therapeutic jurisprudence model ought to be broughtto scale given that proceedings in these courts appear to possess certain inherentfeatures that may tend to exacerbate some of the most troubling problemsassociated with the adjudication of criminal cases in conventional courts,including unnecessary terms of incarceration for minor or technical violationsand prevalent procedural irregularities. On a therapeutic model, any judicialtendencies in these directions are more likely to be unchecked.
Worse still, on a therapeutic jurisprudence model, procedural shortcutting or unnecessary incarceration may be defended as therapeutic, rendering it lesssusceptible to critical engagement.130 For instance, when California drug court 126. See Bozza, supra note 8, at 141–42.
127. National research indicates that approximately three out of every four arrestees in large cities test positive for drugs at the point of arrest. See John Feinblatt et al., Judicial Innovation at theCrossroads: The Future of Problem-Solving Courts, CT. MANAGER, Summer 2000, at 28, 29.
128. See Lisa Shoaf, A Case Study of the Akron Mental Health Court, 32 CAP. U. L. REV. 975, 995 129. See John E. Cummings, Comment, The Cost of Crazy: How Therapeutic Jurisprudence and Mental Health Courts Lower Incarceration Costs, Reduce Recidivism, and Improve Public Safety, 56LOY. L. REV. 279, 281 (2010) (citing telephone interview with Hon. Arthur L. Hunter, Jr., Chief Judge,Orleans Parish Criminal District Court and Presiding Judge of the Louisiana Mental Health Court (Mar.
31, 2009)).
130. Foreshadowing this concern, C.S. Lewis, an early liberal critic of rehabilitative sentencing, cautioned against a system of criminal punishment in which DECARCERATION COURTS judges wished to amend the California penal code to reduce the privacy rightsof drug court defendants/clients, one judge defended the practice as follows: "Isupport a search clause for drug treatment court clients because I think a searchclause is therapeutic . . I don't see a search clause as a sanction so much as anadditional therapeutic intervention that will help them succeed."131 The poten-tially problematic effects of this curtailment of privacy are obscured by atherapeutic justificatory approach that is difficult for non-experts to criticallyconfront on its own terms. And even if, on balance, relinquishing some privacyprotections may be socially desirable because it serves to reduce recidivism,casting the argument for this approach in vague psychotherapeutic terms ob-scures, rather than illuminates, the relevant considerations at stake.
A therapeutic jurisprudence model thus does little by itself to reduce reliance on criminal supervision and incarceration unless administered by a judge al-ready inclined to reduce carceral sentencing and enable other positive interven-tions; and in fact, in the wrong judge's hands, a therapeutic approach may causesignificant harm. Reliance on jail sentences as a sanction for noncompliancewith treatment or other technical requirements can actually result in substantialcarceral penalties.132 Potential net widening effects associated with placingcriminal courts in the role of administering therapeutic interventions also threat-ens to increase criminal case filings and, hence, overall levels of criminalsupervision and quite possibly incarceration.133 Although a therapeutic jurispru-dence model nonetheless appeals to many because it repackages (and resurrects)a rehabilitative sentencing approach, it does so with considerable risk of engen-dering a variety of unintended and undesirable consequences, both for rule of only the psychotherapist can tell us what is likely to cure. It will be in vain for the rest of us,speaking simply as men, to say, "but this punishment is hideously unjust, hideously dispropor-tionate to the criminal's deserts." The experts with perfect logic will reply, "but nobody wastalking about deserts. No one was talking about punishment in your archaic vindictive sense ofthe word. Here are the statistics proving that this treatment deters. Here are the statisticsproving that this other treatment cures. What is your trouble?" C.S. Lewis, The Humanitarian Theory of Punishment, reprinted in 6 RES JUDICATAE 224, 226 (1953); seealso Candace McCoy, Commentary, The Politics of Problem-Solving: An Overview of the Origins andDevelopment of Therapeutic Courts, 40 AM. CRIM. L. REV. 1513, 1513–17 (2003) (discussing thetension and potential conflict between the rehabilitative and coercive elements present in juvenilejustice administration).
131. See James L. Nolan, Jr., Redefining Criminal Courts: Problem-Solving and the Meaning of Justice, 40 AM. CRIM. L. REV. 1541, 1562 (2003) (quoting an unidentified judge).
132. See, e.g., DONALD J. FAROLE, JR. & AMANDA B. CISSNER, CTR. FOR COURT INNOVATION, SEEING EYE TO EYE?: PARTICIPANT AND STAFF PERSPECTIVES ON DRUG COURTS 1 (2005) ("[D]rug courts have beensomewhat less successful in reducing incarceration time. Although those who complete the programspend substantially less time in prison than traditionally prosecuted cases, the relatively lengthysentences for those who do not complete, combined with programs' use of short-term incarceration as asanction for noncompliant participant behavior, render the overall time incarcerated only slightly lowerthan that of comparable non-drug court defendants." (citation omitted)). But see DOUGLAS B. MARLOWE& WILLIAM G. MEYER, NAT'L DRUG COURT INST., THE DRUG COURT JUDICIAL BENCHBOOK 36–37 (2011)(recommending that incarceration should only be used as a last-resort sanction).
133. See FAROLE & CISSNER, supra note 132.
THE GEORGETOWN LAW JOURNAL law principles and for the persons it is intended to benefit.
The answer to these problems is to disentangle reformist criminal law administration from a particular set of predefined therapeutic jurisprudentialcommitments and instead to experiment with jurisprudential content so as toreduce reliance on incarceration and to divert cases to other sectors that maymore meaningfully address social goals. The appropriate reconceptualization forthe courts is as a strategy to enable decarceration, their unifying feature beingthat they are experimenting with criminal law administration to reduce carceralsentencing in favor of preferable approaches rather than adapting a therapeuticmethodology for criminal law. But before turning to a decarceration model, itremains in the following sections to explore the other predominant reformistmodels at work in specialized criminal courts.
B. JUDICIAL MONITORING MODEL The defining characteristic of specialized criminal courts operating on a judicial monitoring model is that they rely primarily on judges to engage inmonitoring of defendants or participants who may be asked to submit to urinetests and curfews and to attend court appointments as often as several times perweek.134 The theoretical basis of the judicial monitoring model is that intensi-fied judicially administered criminal surveillance will reduce future misconduct,at lesser cost than incarceration, and with greater efficacy than conventionalprobation or parole. As distinct from the therapeutic jurisprudence model,specialized criminal courts operating exclusively on a judicial monitoring modeldo not aim to generate therapeutic outcomes through courtroom proceedings.
Instead, the judge is empowered to closely monitor defendants' compliance withcourt mandates in a manner akin to a probation or parole officer. On the judicialmonitoring model, the court retains jurisdiction to monitor the defendant/participant during pretrial proceedings. And when the court assigns a non-carceral sentence, the judge mandates reporting back to the court on a regularbasis.
The impetus for judicial monitoring courts arose largely due to an acute sense of the limits of conventional probation and other non-carceral forms of criminalsupervision. Although probation is by far the most common criminal sanction inthe United States,135 with caseloads of up to 1,000 probationers per officer, thedegree of supervision is frequently minimal.136 Judicial monitoring aims toimprove supervision by transferring authority to judges to monitor defendants.
This transfer, it is hoped, will reduce recidivism and thereby reduce incarcera-tion.
134. BERMAN & FEINBLATT, supra note 7, at 9.
135. See, e.g., Key Facts at a Glance: Correctional Populations, BUREAU OF JUSTICE STATISTICS, http://bjs.ojp. usdoj.gov/content/glance/tables/corr2tab.cfm (reflecting the disproportionately large num-ber of individuals sentenced to probation, as compared to prison or jail, in the United States from 1980to 2009) (last revised Feb. 12, 2012).
136. BERMAN & FEINBLATT, supra note 7, at 21.
DECARCERATION COURTS Two examples of specialized criminal courts operating primarily on the judicial monitoring model are domestic violence courts and sex offense courts,though certain drug courts and other specialized criminal courts also functionprimarily as judicial monitoring bodies. Intensive monitoring of defendants indomestic violence cases aims to encourage greater compliance with protectiveorders and attendance of anger management trainings.137 Judicial monitoringsex offense courts likewise supervise defendants' compliance with court man-dates and mandatory treatment.138 A judicial monitoring model as applied todrug courts extends judicial supervision over drug offenders. In some jurisdic-tions' drug courts, judicial monitoring is coupled with a therapeutic jurispruden-tial approach. In other jurisdictions it is not.139 Although judicial monitoring relies in part on technological devices to facili- tate monitoring, the judicial role shifts in these courts in ways that poseconsiderable risks of judicial overreaching, expanded surveillance, and in-creased incarceration for technical violations. Due to the large numbers ofcriminal cases disposed of with probationary sentences—and the tremendouscapacity of the defense, computer, and electronic industries—there is an exten-sive market for electronic monitoring, voice verification systems, and inexpen-sive on-site drug testing on which monitoring may rely.140 But the centralfeature of judicial monitoring, as opposed to probation or parole, is that thejudge plays an active role in overseeing surveillance of defendants. And once ajudge becomes the monitor of defendants' compliance with court orders, thejudge's role changes from one of, at least in principle, adjudicative neutrality tomore active investigative supervision on behalf of the state. Simultaneously, ajudicial monitoring model threatens to expand, rather than reduce, levels ofcriminal supervision and at least short-term incarceration because more inten-sive supervision increases the likelihood of identifying technical violations,which increases the likelihood of short-term incarceration. This increased likeli-hood is true particularly because, in many judicial monitoring courts, incarcera-tion is the default penalty for technical violations that do not even rise to thelevel of criminally chargeable misconduct.141 One particularly striking example of the judicial role transformation and expanded criminal surveillance associated with the judicial monitoring modelcan be found in the ethnographic work of sociologist James Nolan, whoundertook several multi-year studies of drug courts and other specialized crimi-nal courts. As related in this Article's introduction, in Judge McKinney'sSyracuse, New York drug court, Nolan found that judicial monitoring empow- 137. See JUSTICE POLICY INST., supra note 73, at 19.
138. See Interview by Center for Court Innovation with Judge James McCarthy, supra note 86.
139. See, e.g., Glass, supra note 113.
140. Joan Petersilia, A Decade of Experimenting With Intermediate Sanctions What Have We Learned?, FED. PROBATION, Dec. 1998, at 3, 5.
141. See, e.g., ZACHARY HAMILTON, CTR. FOR COURT INNOVATION, DO REENTRY COURTS REDUCE RECIDI- VISM?: RESULTS FROM THE HARLEM PAROLE REENTRY COURT 4 (2010).
THE GEORGETOWN LAW JOURNAL ered the judge to delegate reporting authority to the defendant's employer, towhom Judge McKinney promised a deal: "[Y]ou take [the defendant] back andI'll add another weapon to your arsenal. If he doesn't come to work when he issupposed to, doesn't come to work on time . . I'll put him in jail, on your sayso."142 Invasive judicial monitoring of this sort may result in part from thecourt's understanding of itself as engaged purely in deterrent conduct-shapingmonitoring rather than punishment. As on the therapeutic jurisprudence model,which is (ostensibly) solely rehabilitative in its focus, on the judicial monitoringmodel specialized criminal courts seek to purify their approach to a solelydeterrence-based framework. But as with the neo-rehabilitative approach of thetherapeutic jurisprudence model, the judicial monitoring model is unconstrainedby concerns of proportionality and operates without self-consciousness of itspotentially punitive and overreaching, rather than purely deterrent, effects. Also,because the judicial monitoring model treats the unconstrained authority of thejudge to solve problems as central to its mission, it is no solution simply toconstrain sanctions for technical violations to those that would have beenavailable had the defendant gone through the conventional process or to thosethat would otherwise be proportional to particular sorts of violations.
Further, because a judicial monitoring model is frequently dominant in specialized courts where retributive responses are likely to be triggered—suchas domestic violence and sex offense courts—the threat of punitive judicialoverreaching in carrying out purportedly purely deterrent monitoring is ofspecial concern.143 In other words, whereas the therapeutic approach tends todominate in courts addressing more sympathetic cases—those involving drugaddicts, veterans, or the mentally ill—the punitive excesses of judicial monitor-ing threaten to surface with particular force given that the model plays a centralrole in courts with less conventionally sympathetically received defendants.
There is even a risk that the monitoring courts will become partially insulatedfrom conventional adversarial advocacy because they are specialized anti-formalist, team-oriented courts, and judicial monitoring will serve as a vehiclefor enhanced punitiveness for unpopular classes of defendants: those chargedwith domestic violence or sex offenses, for example.
In addition to the liberty-infringing risks posed by courts operating on a judicial monitoring model, there remain fundamental questions about the abilityof such courts to reduce recidivism and achieve other desired ends.144 Part ofthe motivation for court specialization is that judges in a specialized judicialmonitoring court may become experts with regard to the particular offense at 142. See Nolan, supra note 17, at 32.
143. See, e.g., supra notes 137–38 and accompanying text.
144. To the extent reduced cost is a concern, judicial monitoring is more resource intensive than probation or parole supervision as it relies on relatively higher paid judges supervising relativelysmaller case loads.
DECARCERATION COURTS issue.145 But problems arise when judges believe they possess special expertiseabout a single best approach to monitoring an issue when in fact there isprofound uncertainty as to how best to handle such matters. For example, thereis preliminary empirical evidence that a judicial monitoring approach is lesseffective than might be anticipated in reducing recidivism in domestic violencecases. A study of the Bronx Misdemeanor Domestic Violence Court trackedrandomly assigned groups of offenders who received varying combinations ofjudicial monitoring and batterer's intervention.146 The differential rates of recidi-vism of violent conduct among the groups (including those who received nojudicial monitoring or other intervention) were not statistically significant.147This result suggests that the routine judicial monitoring interventions of thedomestic violence court—batterer's intervention and court monitoring—mayhave limited success in reducing the incidence of domestic violence.148 Sowhile in at least one jurisdiction domestic violence recidivism remained un-changed, substantial resources were devoted to a judicial monitoring regime thatthreatens to significantly transform the role of the judge with other uncertainand potentially undesirable effects.149 What is more, in the reentry context at least, a judicial monitoring model has been associated with substantial increases in reincarceration for technical viola-tions. A study of the Harlem Parole Reentry Court's initial judicial monitoringprogram found that "[t]echnical revocations occurred more frequently for Reen-try Court participants than comparison parolees" for all three years of thestudy—an effect the Court's researchers ascribe to a "supervision effect"150(that is, increased discovery of punishable violations produced by increasedsupervision). Thus, the Harlem Parole Reentry Court study reflects that ajudicial monitoring approach threatens to increase incarceration for technical 145. BERMAN & FEINBLATT, supra note 7, at 103 ("By handling all felony cases from the borough in a single courtroom, the court was designed to develop a focused expertise in domestic violence.").
146. See MELISSA LABRIOLA ET AL., CTR. FOR COURT INNOVATION, TESTING THE EFFECTIVENESS OF BATTERER PROGRAMS AND JUDICIAL MONITORING 15–21 (2005) (describing research methodology).
147. Id. at 41–42; see also id. at 62 ("We anticipated that monitoring would suppress recidivism, at least during the monitoring period itself. But judicial monitoring had no more impact on re-offendingthan did batterer programs: When we compared the offenders in our randomized trial—all of whomwere monitored—to a matched group of offenders who pled to violations and were sentenced to aconditional discharge without monitoring, we found no differences in nearly all re-arrest measures.").
148. See id. But see Catherine Shaffer, Therapeutic Domestic Violence Courts: An Efficient Ap- proach to Adjudication?, 27 SEATTLE U. L. REV. 981, 995–96 (2004) (reporting other studies ofdomestic violence batterer treatment programs that demonstrated evidence of reduced recidivism).
149. Similar concerns about the soundness of court monitoring and intervention applies in the drug court context: some evaluations of drug courts show that drug court monitoring and treatment achieveoutcomes no better than traditional in-community treatment, and other evaluations claim reducedrecidivism but suffer from significant methodological problems. See, e.g., Candace McCoy, Do DrugCourts Work? For What, Compared to What? Qualitative Results from a Natural Experiment, 5 VICTIMS& OFFENDERS 64 (2010) (exploring methodological problems with drug court studies and analyzingnatural experiment suggesting that drug courts achieve outcomes equivalent to traditional in-community treatment).
150. See HAMILTON, supra note 141, at 29.
THE GEORGETOWN LAW JOURNAL violations, such as missed curfews or other failures to conform with the court'smonitoring orders.151 These findings are consistent with the best available evidence regarding "intensive supervision programs" (ISP) during an earlier period of experimenta-tion with intensive criminal surveillance. Monitoring aimed at deterrence, whenuncoupled from a substantial rehabilitative component, tends strongly to expandincarceration with little in the way of countervailing benefits. According toStanford criminologist Joan Petersilia, who is among the country's leadingexperts on intermediate sanctions, the: [E]mpirical evidence regarding intermediate sanctions is decisive: Without arehabilitation component, reductions in recidivism are elusive. In sum . .
programs were seldom used for prison diversion but rather to increase account-ability and supervision of serious offenders on probation. In addition, pro-grams did not reduce new crimes, but instead increased the discovery oftechnical violations and ultimately increased incarceration rates and systemcosts.152 The ineffectiveness of judicial monitoring may be further aggravated if judicial monitoring negatively influences defendants' perceptions of legitimacyof the courts. Diminished perceptions of procedural fairness on the part ofdefendants in judicial monitoring courts may actually undermine compliancewith court orders by fostering resentment and exacerbating recidivism.153 So as with the therapeutic jurisprudence model, on the judicial monitoring model the role of the judge expands, potentially dramatically beyond its tradi-tional bounds. Surveillance increases. Procedural protections are curtailed toenable judicial monitoring. And there is no overriding commitment to avoidincarceration in the instance of discovery of technical violations. As a conse-quence, increased periods of at least short-term incarceration threaten to follow,even if only as a product of technical violations, and the reach of the criminal 151. See id.
152. Petersilia, supra note 140, at 6; see also Joan Petersilia & Susan Turner, Intensive Probation and Parole, 17 CRIME & JUST. 281, 311 (1993) (finding that, in a study of ISP participants, "an averageof 65 percent of the ISP clients experience[d] a technical violation compared with 38 percent of thecontrols").
153. In judicial monitoring courts, even before adjudication, defendants are routinely subject to intensive supervision and mandatory treatment with the only alternative being incarceration. Thisarrangement raises double jeopardy concerns, among other problems: insofar as the preadjudicationmonitoring is punitive in purpose, it effectively may lead to imposition of double punishment, oncepreadjudication and subsequently postadjudication. See generally Deborah Epstein, Procedural Justice:Tempering the State's Response to Domestic Violence, 43 WM. & MARY L. REV. 1843 (2002) (explaininghow social psychological findings regarding perceptions of legitimacy and legal compliance indicatethat procedural justice may be important to reducing the incidence of domestic violence recidivism and,hence, domestic violence court monitoring should attend to this variable in determining court interven-tions).
DECARCERATION COURTS law threatens to radically expand.154 Monitoring that is not merely extendingsurveillance for its own sake must attend to what forms of surveillance actuallypromote socially desirable outcomes by eliminating crime and reducing incarcera-tion. This is, in significant part, the ambition of a decarceration model, to whichwe will turn after exploring the order maintenance model—the final criminallaw reformist model commonly at work in specialized criminal courts.
C. ORDER MAINTENANCE MODEL The third widely occurring criminal law reformist model operative in special- ized criminal courts seeks to advance order maintenance by convening localtribunals devoted to prosecutions of relatively minor quality-of-life crimes.
Although the general goal of specialized criminal courts was to address theimpacted and poor quality of conventional criminal law administration byshifting cases out of conventional courts into specialized courts, in the view ofsome advocates, "in many cases, the current system works just fine" such as inhandling "murders, rapes, and robberies;" they believed that alternatives forprosecution of more serious offenses would be inappropriate.155 Consequently,efforts focused on minor crimes—"prostitution, low-level drug possession, anddisorderly conduct"—that conventional criminal courts were otherwise inclinedto ignore.156 The theoretical framework underlying the order maintenance model is largely derived from the broken windows approach to policing. The broken windows,or order maintenance, hypothesis maintains that minor physical and socialdisorder—turnstile jumping, marijuana use, public drinking—if not addressed,contributes to more serious crime.157 A specialized order maintenance criminalcourt responds to public order violations by initially assigning intermediate 154. See Loı¨c Wacquant, Prisoner Reentry as Myth and Ceremony, 34 DIALECTICAL ANTHROPOLOGY 605, 616 (2010) (explaining how monitoring, along with other community supervision programs, mayextend the scope of criminal supervision without offering any means to counteract the pressures towardtechnical noncompliance and criminal offending that abound in under-resourced neighborhoods). Butsee ANGELA HAWKEN & MARK KLEIMAN, MANAGING DRUG INVOLVED PROBATIONERS WITH SWIFT ANDCERTAIN SANCTIONS: EVALUATING HAWAII'S HOPE (2009), https://www.ncjrs.gov/pdffiles1/nij/grants/229023.pdf (evaluating favorably probation monitoring and flash incarceration intensive supervisionprogram for drug offenders in Hawaii for its reduction of reliance on prison sentencing for high-riskdrug offenders relative to less intensively surveillant conventional supervision). It is worth noting thatProject HOPE is a probation supervision, as distinct from a specialized courts, regime, and, whileHawken and Kleiman's study suggests HOPE probation may be preferable to the dysfunctional statusquo in conventional drug probation and parole, it is still heavily reliant on incarceration and intensivecriminal surveillance. See id. 155. BERMAN & FEINBLATT, supra note 7, at 4.
156. See id.
157. Professor Bernard Harcourt powerfully criticizes this hypothesis, refuting the oft-cited bases of empirical support for the theory and raising foundational theoretical and empirical questions regardingbroken windows policing. As Harcourt explains in summary: First, the quality-of-life initiative may create the category of the disorderly. Second, thecategory of the disorderly may facilitate a policy of aggressive arrests, with the possibility ofattendant brutality, even though such a policy is unlikely to have the slightest effect on crime THE GEORGETOWN LAW JOURNAL sanctions such as community service. It is hoped that imposition of thesesanctions, in turn, will improve perceptions of the law's legitimacy and hencesocial order. The theory, as applied to specialized criminal courts, holds that, asa consequence of prosecuting public order offenses, crime overall will declineand, with it, more general reliance on criminal arrests and incarceration.158 Along these lines, community courts, the quintessential order maintenance courts, aim to improve social order by providing a venue for the prosecution ofrelatively minor quality-of-life offenses occurring in a delimited geographicarea.159 Incarceration is imposed only if a defendant is noncompliant withintermediate sanctions or if his offense is relatively serious. Generally, misde-meanor defendants are able to opt in to courts operating on an order mainte-nance model rather than being mandatorily assigned.160 In addition to community courts, other specialized criminal courts may also operate on an order maintenance model. For example, drug courts operating onan order maintenance approach provide a local forum for prosecuting lower-level drug offenses that would otherwise receive minimal attention in conven-tional criminal courts.
There are three supposed advantages to an order maintenance model of specialized criminal court administration, all of which fail to withstand closescrutiny. First, proponents suggest that these courts will increase potentialoffenders' perceptions of the criminal law's legitimacy and, hence, will increaselaw-abiding behavior overall.161 This is thought to be the case because thecourts assign presumably more meaningful non-carceral sanctions.162 But ordermaintenance courts are often perceived as harsher and less legitimate thanconventional courts in their response to public order violations. Communitycourts are less inclined to dismiss cases with "time served" sentences, andwhere jail time is imposed, it is for longer periods.163 Further, communityservice sentences will not necessarily be perceived as more legitimate than jail rates. Third, the interplay of the norm of orderliness (discipline) and the ideals of justice (law)may succeed in blinding us to the disorder that accompanies the quality-of-life initiative.
Bernard E. Harcourt, Reflecting on the Subject: A Critique of the Social Influence Conception ofDeterrence, the Broken Windows Theory, and Order-Maintenance Policing New York Style, 97 MICH. L.
REV. 291, 368 (1998); see also BERNARD E. HARCOURT, ILLUSION OF ORDER: THE FALSE PROMISE OFBROKEN WINDOWS POLICING (2001).
158. But see Harcourt, supra note 157, at 292–94.
159. See, e.g., Victoria Malkin, Community Courts and the Process of Accountability: Consensus and Conflict at the Red Hook Community Justice Center, 40 AM. CRIM. L. REV. 1573, 1574 (2003)("[T]he unifying feature of these community courts is their preoccupation with the ‘quality of life' inlocal neighborhoods.").
160. See, e.g., BERMAN & FEINBLATT, supra note 7, at 62.
161. See generally MICHELE SVIRIDOFF ET AL., DISPENSING JUSTICE LOCALLY: THE IMPLEMENTATION AND EFFECTS OF THE MIDTOWN COMMUNITY COURT (2000).
162. See id.
163. See id. at 129 ("[A]ll else being equal, petit larceny cases at Midtown receive[d] jail sentences that [were] 31 days longer than similar cases Downtown [at the main criminal courthouse], and . .
jail sentences for prostitution cases tended to be longer at Midtown than Downtown.").
DECARCERATION COURTS sentences. One sex worker sentenced at the Midtown Community Court ex-plained: "Community service is all day—cleaning toilets and stuffing enve-lopes . . "164 Rather than improving perceptions of legitimacy, routine relianceon community service of this sort as a sanction may reduce opportunities forpaid work in a jurisdiction and cause further economic hardship for defendants.
The onerous requirements of unpaid community service work coupled withassociated fines may even increase pressures to participate in criminalizedmarkets.
A second purported advantage of an order maintenance model is that it will reduce reliance on conventional carceral sentencing, instead introducing moreeffective and beneficial intermediate sanctions, like community service. Butwhen defendants fail to comply with intermediate sanctions, they are oftenpunished with at least short-term incarceration. Indeed, empirical analysesestablish that increased short-term incarceration is the unintended outcome of atleast some courts operating on an order maintenance model.165 Additionally, in a manner distinct from that of therapeutic courts, order maintenance courts widen the net of infractions addressed by criminal courtsbecause they focus primarily on low-level misdemeanor offenses, which other-wise would receive less attention: disorderly conduct prosecutions are common-place in order maintenance courts for pedicab drivers' obstruction of cross-walks or unlicensed vending of t-shirts or otherwise licit goods.166 This netwidening tendency is consistent with the findings of Professors Michael Tonryand Norval Morris, who demonstrated in their famous study of intermediatesanctions that "[w]hen an intermediate choice is offered it will tend to be filledmore by those previously treated more leniently than by those previously treated 164. Robert Victor Wolf, New Strategies for an Old Profession: A Court and a Community Combat a Streetwalking Epidemic, 22 JUST. SYS. J. 347, 355 (2001).
165. See SVIRIDOFF ET AL., supra note 161, at 129. As an aside, to the extent that more vigorous enforcement of particular quality-of-life offenses, such as prostitution, in one discrete area aims toeliminate that conduct (whether by improving offenders' perceptions of legitimacy or otherwise), it isequally likely that the undesired conduct will just be pushed to a different (not necessarily distant)location. Further, all too often courts administering specialized criminal law recognize the broader webof the problem at stake—whether prostitution or shoplifting—but focus exclusively on an individual'saddiction or other personal issues that may be impossible to meaningfully address without attending tobackground conditions that inform the personal problems. See generally Jeffrey Fagan & VictoriaMalkin, Theorizing Community Justice Through Community Courts, 30 FORDHAM URB. L.J. 897,948–49 (2003) ("Although originally designed to provide a creative and rich mix of social andrehabilitative services to citizens with a variety of legal entanglements and social problems living in adisadvantaged neighborhood the Red Hook Community Justice Center relies heavily on drug treatmentto address residents' complex personal problems that do not easily fall into a simplified medicaltreatment paradigm. Despite its notable achievements . . the Justice Center remains focused on millingthe neighborhood's ‘disorderly'—the loiterers, the publicly intoxicated—into drug treatment of uncer-tain effectiveness.").
166. See Author's Site Visit Notes, Midtown Community Court, September 2011 (on file with THE GEORGETOWN LAW JOURNAL more severely."167 This is not to suggest that intermediate sanctions are neverappropriate but rather that there is a risk of net widening where such sanctionsare made available and order maintenance courts stand to considerably expandthe class of offenses subject to criminal prosecution by emphasizing offensesthat would otherwise be unlikely targets for prosecution. As a result of this netwidening tendency, an order maintenance model threatens to expand criminalsupervision and increase short-term incarceration when individuals are unableto comply with intermediate sanctions.
Whether other beneficial effects on local neighborhoods follow from this net widening criminal law enforcement remains uncertain. According to Portland'sdistrict attorney Mike Schrunk, a proponent of Portland's order maintenancespecialized criminal court, as a prosecutor "[y]ou tend to blow off" turnstilejumping or petty shoplifting because they are "not as important as rape androbbery."168 Yet, Schrunk justifies emphasis on these minor offenses in ordermaintenance courts on the grounds that "what really drives people out of aneighborhood or makes a neighborhood rot from the inner core is the small,petty stuff."169 But it is not entirely clear why turnstile jumping, unless abso-lutely pervasive and reckless, would undermine the quality of life in a particularneighborhood. Although petty shoplifting is perhaps more harmful to localbusinesses, it is not apparent why such offenses must be prosecutorial prioritiesin order to obtain a satisfactory level of respect for private property in targetedneighborhoods. For instance, local business organizations could instead encour-age store owners to adopt store policies that render goods less readily subject totheft. In fact, the available evidence indicates that police arrest less than onepercent of all shoplifters.170 Shoplifters are most likely to steal products, such asclothing, CDs, and DVDs, which are "concealable, removable, available, valu-able, enjoyable, and disposable."171 Placing unremovable security tags on theseproducts and/or storing them in locked shelving units, along with other storedesign and stock control measures, substantially reduce the opportunity toshoplift.172 For these reasons, store owners and the public at large would likelybe better served by adopting environmental and business practices that reducethe incidence of shoplifting rather than investing large sums of public resourcesin prosecuting some small percentage of these offenses (that are so minor as tootherwise command little prosecutorial attention) in specialized order mainte-nance courts. Of course, this alternative approach transfers the costs of address-ing petty crime in part from tax payers to business owners, but the businesscosts of merchandising and related policies are not prohibitive and there is 167. NORVAL MORRIS & MICHAEL TONRY, BETWEEN PRISON AND PROBATION: INTERMEDIATE PUNISHMENTS IN A RATIONAL SENTENCING SYSTEM 225 (1990).
168. BERMAN & FEINBLATT, supra note 7, at 72.
169. See id.
170. CLARKE, supra note 59, at 1–2.
171. See id. at 6.
172. See id. at 8–9; see also Klingele et al., supra note 59, at 975–76.
DECARCERATION COURTS strong reason to believe they would prove both more effective and less costlyoverall.173 What's more, although there may be positive effects associated with devoting attention to disruptive conduct that residents of affected areas care about—forinstance, the prevalence of street prostitution may cause more sexual harass-ment of all women and girls—there are also significant potential negative,systemic consequences generated by bringing more people under criminalsupervision than would otherwise occur. In particular, net widening may causecriminal courts' dockets to become further impacted. In Denver, Colorado, forexample, the number of drug cases filed in the Denver District Court grewradically after the introduction of a drug court program dedicated to prosecutinglow-level drug offenses—effectively an order maintenance drug court mod-el—as police and prosecutors perceived the courts to be capable of handling thesort of minor offenses that would previously not have been pursued. During1993, the last full year before the Denver Drug Court convened, 1,047 drugcases were filed, but during the second year of the Court's existence, in 1996,there were 3,017 filings. Judge Morris Hoffman of the Denver criminal courtreported that the Denver Drug Court "caused police to make arrests in, andprosecutors to file, the kinds of ten- and twenty- dollar hand-to-hand drug casesthat the system simply would not have bothered with before."174 Ultimately, inlarge measure for this reason, Denver abandoned its Drug Court in 2003 and didaway with order maintenance drug law administration.175 Expanding the range of individuals subject to criminal prosecution in order maintenance courts is not simply a matter of burdening court dockets. Netwidening produces other broader, systemic pressures: when offenders do notcomply with intermediate sanctions administered by order maintenance courts,they are subject to short-term incarceration. Subsequently, even those offenderswho receive only thirty-day jail sentences often cycle back through the criminal 173. Likewise, much auto theft may be prevented through straightforward changes by auto manufac- turers. See Ronald V. Clarke & Patricia M. Harris, Auto Theft and Its Prevention, 16 CRIME & JUST. 1,37 (1992). To provide another related example of this approach, in Portland, Oregon, residentsconcerned about open-air drug dealing in a local park turned on the park's sprinklers periodicallythroughout the day, and it worked to disperse the drug dealing. As one prosecutor related: "Noexpenditure of police or prosecutor resources, the problem is solved, and all we did was water thelawn." See Klingele, et al., supra note 59, at 966 (citing AM. PROSECUTORS RESEARCH INST., UNWELCOMEGUESTS: A COMMUNITY PROSECUTION APPROACH TO STREET LEVEL DRUG DEALING AND PROSTITUTION 1(2004) (quoting Multnomah County Deputy District Attorney Wayne Pearson)). Drug transactions inPortland surely did not cease, but they shifted location and that may be all that can be expected of crimecontrol interventions of any kind. See, e.g., Neal Kumar Katyal, Deterrence's Difficulty, 95 MICH. L.
REV. 2385, 2392–97 (1997) (exploring how criminal law's deterrent effect may often lead to substitu-tion of one offense for another or displacement of crime rather than its elimination).
174. See Morris B. Hoffman, Commentary, The Drug Court Scandal, 78 N.C. L. REV. 1437, 1502 175. See Morris B. Hoffman, Commentary, A Neo-Retributionist Concurs with Professor Nolan, 40 AM. CRIM. L. REV. 1567, 1567 (2003). But see Sue Lindsay, City Resurrects Drug Court: SupportersTout New Strategies To Avoid System's Past Failures, ROCKY MOUNTAIN NEWS, Jan. 15, 2007, http://www.
highbeam.com/ doc/1G1-157582096.html.
THE GEORGETOWN LAW JOURNAL courts, trapped in a never-ending series of criminal supervisory sentences, suchthat these minor law breakers end up "doing life in prison, thirty days at atime."176 This pattern imposes tremendous costs on the public and often irrepara-bly disrupts the lives of accused minor law breakers and their families.
A final benefit noted by supporters of an order maintenance model, and of community courts in particular, involves the courts' revival of local democraticparticipation in criminal law administration. While democracy is not an unquali-fied good for criminal law—indeed, democratic processes have often resulted inlater-regretted criminal law and policy outcomes—democratic excesses could inprinciple be restrained by confining community participation to discrete locali-ties in which the members would themselves internalize the costs of favoredpolicies.177 The local democratic potential of community courts is thought toderive from the involvement of community members in setting the courts'priorities, the local access to community court judges, and more general in-creased accessibility and transparency of the courts. Yet, the actual democraticpotential of order maintenance community courts is unclear given that, asmultiple studies indicate, only a small number of often relatively wealthy orunusually vocal individuals participate actively in community court pro-grams.178 In fact, there is some evidence that these courts may serve to advancethe interests of a moneyed minority interest group in furthering gentrification toimprove property values.179 And while gentrification may be a positive force inthese neighborhoods—engendering improved neighborhood quality of life andincreasing property values—it is nonetheless questionable whether associatedcourt reform desirably reconstitutes local democratic practices in criminal lawadministration. Control of a local criminal law enforcement agenda by a fewrelatively powerful outspoken community members hardly represents a robustform of local democratization of criminal law, whatever may or may not be the 176. Alex Calabrese, Presiding Judge, Red Hook Community Justice Center, Speech delivered at London, England (July 7, 2003) (quoted in BERMAN & FEINBLATT, supra note 7, at 16).
177. See, e.g., Dan M. Kahan & Tracey L. Meares, Foreword, The Coming Crisis of Criminal Procedure, 86 GEO. L.J. 1153, 1173–77 (1998); Tracey L. Meares & Dan M. Kahan, Law and (Normsof) Order in the Inner City, 32 LAW & SOC'Y REV. 805, 832 (1998) ("When inner-city residents canchoose for themselves the law enforcement policies that will work for them, crime is reduced throughcommunity empowerment."); William J. Stuntz, Unequal Justice, 121 HARV. L. REV. 1969, 1974 (2008).
178. See Fagan & Malkin, supra note 165, at 943–47; Lanni, supra note 68, at 381; Malkin, supra note 159, at 1585–86.
179. As one supporter of the Portland Community Court remarked, "Now people are buying property, and when you own property, you care about it. . Now we feel like we can really invest in ahome here." BERMAN & FEINBLATT, supra note 7, at 82 & 207 nn. 16–17 (citing Voice from theNeighborhood, Community Court Reporter, Portland Oregon Community Court, June 2001 (quotingSusan Cox, resident of Southeast Portland)). The most vocal supporters of the Midtown CommunityCourt in Manhattan are likewise those local residents whose real estate assets benefitted considerablyfrom the gentrification enabled by order maintenance policing. See, e.g., Midtown Community CourtVideo, CTR. FOR COURT INNOVATION, http://www.courtinnovation.org/research/midtown-community-court-video (last visited Mar. 9, 2012); see also Robert Weisberg, Restorative Justice and the Danger of"Community," 2003 UTAH L. REV. 343 (examining some of the potential threats of the invocation of theterm "community").
DECARCERATION COURTS other advantages of gentrification.180 In summary, the criminal law reformist benefits ascribed to an order mainte- nance model are uncertain, and this approach poses a significant risk of generat-ing otherwise harmful consequences.
D. DECARCERATION MODEL A decarceration model is committed foremost to reducing reliance on incarcera- tion and to a sociologically and empirically informed framework that links courtparticipants to local social services and other institutions, shifting the manage-ment of socially disruptive conduct in part from criminal courts to other sectors.
The ultimate aim of a decarceration model, as applied to specialized criminalcourts, is to isolate those crimes for which conventional criminal law administra-tion may be most fitting, contributing gradually to the de facto decriminalizationof certain categories of conduct and enabling alternative non-carceral regulatoryapproaches to a range of social ills where criminalization remains appropriate.
The basic premise underlying a decarceration model in the specialized courtscontext is that overcriminalization and overincarceration are in part structuralproblems, which specialized criminal courts may begin to address.
Because a decarceration model aims to reduce reliance on incarceration while achieving other social goals, the model endeavors to respond to the forces thatled incarceration rates to rise so precipitously in the first instance and that causethem to remain so high. The explanations for large-scale incarceration arevarious, but there is general agreement that criminal law and policy contributedsignificantly to the growth in incarceration.181 Expanded sentences for drugconvictions perpetuated a significant portion of the increase in state prisonersbeginning in the late 1980s, and, subsequently, much of that growth has beenattributable to increased penalties for violent crimes, predominantly robbery andassaults, and "public order" offenses.182 As a result, criminal law and policychanges stand to contribute substantially to decarceration, but one single policyintervention will be insufficient to bring about any extensive decrease inimprisonment. Instead, the scholarly consensus suggests that prison commit-ments must be reduced and prison release increased and return to prison afterparole failure decreased.183 Obstacles to achieving these ends, which I willtouch upon only briefly because they are thoroughly explored elsewhere, in-clude: the difficulty of legislatively retreating from the "pathological politics" of 180. It is beyond the scope of this Article to address the complicated relationship between order maintenance, social welfare, and gentrification. My more limited suggestion here is that, regardless ofone's views on these matters, there is considerable reason to doubt that order maintenance specializedcriminal law administration revitalizes local democratic criminal law decision making, as theseprocesses appear to be controlled by a small but vocal and economically influential minority.
181. See Gartner et al., supra note 53, at 293–94.
182. JAMES AUSTIN ET AL., JFA INST., UNLOCKING AMERICA: WHY AND HOW TO REDUCE AMERICA'S PRISON POPULATION 7 (2007).
183. See, e.g., Gartner et al., supra note 53, at 313.
THE GEORGETOWN LAW JOURNAL overcriminalization and overincarceration;184 the organizational cultures of po-lice and prosecutors' offices that encourage vigorous enforcement of existingcriminal laws;185 fiscal constraints that limit available funds for social servicealternatives to incarceration; reduced judicial authority under determinant sen-tencing laws; resistance of interest group lobbies, such as victims' rights groupsand prison guards unions; a limited role for less politicized expert input incriminal law and policy-making; and belief in the efficacy or at least unavoidabil-ity of criminalization and incarceration.186 A decarceration model may functionto circumvent and begin to reshape some of these barriers.
Courts operating predominately on a decarceration model circumvent some of the legislative impediments to changing substantive criminal law by workingcooperatively with prosecutors, police, defense counsel, and elected officials atthe local level to shift cases out of the conventional criminal courts. Withoutrequiring legislative repeal of particular criminal statutes, these courts provide avenue for suspending or dropping criminal charges in drug cases, a range ofmisdemeanor cases, and, in some instances, even in cases involving moreserious felony charges as well as in a range of matters involving mentally illoffenders and veterans. A decarceration approach seeks to locate alternative forafor responding to these matters, and then when the courts have obtained acertain measure of broad-based support, legislators are able to enact statutes thatlegitimize and institutionalize the decarceration regime. This method has provento be more politically viable than seeking directly to decriminalize particularconduct, and alternative diversionary court approaches have garnered consider-able public support.187 In their day-to-day operations on a decarceration model, courts act as diversion- ary clearinghouses for social service resources, ensuring the assignment ofindividual defendants to those resources. Careful empirical monitoring tracks onan ongoing basis court outcomes to ensure that incarceration is actually reduced 184. See, e.g., Luna, supra note 28, at 719 ("As a rule, lawmakers have a strong incentive to add new offenses and enhanced penalties, which offer ready-made publicity stunts, but face no countervail-ing political pressure to scale back the criminal justice system."); Paul H. Robinson & Michael T.
Cahill, Can a Model Penal Code Second Save the States from Themselves?, 1 OHIO ST. J. CRIM. L. 169,169–73 (2003) (critically examining the expansion of criminal codes and the difficulty of retreatingfrom this pattern through legislative repeals); Stuntz, supra note 2, at 510, 515; see also WILLIAM J.
STUNTZ, THE COLLAPSE OF AMERICAN CRIMINAL JUSTICE (2011).
185. See, e.g., Barbara E. Armacost, Organizational Culture and Police Misconduct, 72 GEO. WASH.
L. REV. 453, 519 (2004) (discussing how police organizations, not unlike other bureaucracies, areinclined to assess success quantitatively by arrest and citation numbers rather than by qualitativeassessments); Steven A. Drizin & Beth A. Colgan, Let the Cameras Roll: Mandatory Videotaping ofInterrogations Is the Solution to Illinois' Problem of False Confessions, 32 LOY. U. CHI. L.J. 337,347–48 n.46 (2001) (noting that conviction percentages influence election and promotion in stateprosecutors' offices).
186. See Gartner et al., supra note 53, at 313–19.
187. See, e.g., NAT'L CTR. FOR STATE COURTS, THE NCSC SENTENCING ATTITUDES SURVEY: A REPORT ON THE FINDINGS 5 (2006) (reporting that over eighty percent of persons surveyed in representative nationaltelephone survey supported alternative non-carceral sentencing "often" or "sometimes" for nonviolentcases).
DECARCERATION COURTS and to ascertain the effect of various alternative sanctions and services onparticipants and other relevant variables.188 At least in some jurisdictions, courts adopting a decarceration model assume jurisdiction over those charged with, or convicted of, more serious felonyoffenses.189 This is critical to reducing reliance on incarceration and avoidingnet widening because many nonviolent misdemeanor offenses are already dealtwith through non-carceral sentences in the conventional courts.190 To the extentcourts adopting a decarceration approach address accused offenders who mightotherwise receive probationary sentences, the diversionary programming ordersissued may make it less, rather than more, likely that defendants will be subjectto incarceration in the future by facilitating opportunities for law-abiding liveli-hoods.
The theoretical framework that informs the decarceration model focuses on deploying social structures separate from criminal law administrative compo-nents—such as local neighborhood networks, business organizations, and men-tal health, public health, job training, and other social services—to reducecriminal offending and to foster socially constructive citizenship behaviors. Thefoundational idea is that social institutions outside the criminal law context arecritical to the maintenance of social order and to organizing informal surveil-lance. Correspondingly, a shift away from current carceral practices will beenabled by bolstering opportunities for social integration and institutional involve-ment, particularly for those persons with otherwise limited access to suchconventional social institutions.191 There is wide-ranging empirical and theoretical support for this structural 188. See, e.g., ROSSMAN ET AL., supra note 12, at 1–10, 165, 169, 262–65 (examining, in multi-site study of drug courts, certain features of courts that correspond to a decarceration model, includingorganization of specialized courts as clearinghouses for social service resources and empirical monitor-ing).
189. See, e.g., Interview by Carolyn Turgeon with Judge Matthew J. D'Emic, Brooklyn Mental Health Court (June 2004), available at http://www.courtinnovation.org/research/matthew-j-demic-brooklyn-mental-health-court?mode⫽ 889&url⫽research%2F889%2Finterview ("Initially we were setup to handle exclusively non-violent felonies, but that changed and we do take some violent fel-ons . . ").
190. Although only approximately seventeen percent of the crimes for which individuals are arrested are either violent or property crimes, roughly seventy-one percent of people incarcerated in stateprisons have been convicted of violent or property crimes. Compare Uniform Crime Reports, Crime inthe United States 2010: Arrests, FED. BUREAU OF INVESTIGATION, http://www.fbi.gov/about-us/cjis/ucr/crime-in-the-u.s/2010/crime-in-the-u.s.-2010/persons-arrested (last visited Mar. 20, 2012), with HEATHERC. WEST & WILLIAM J. SABOL, BUREAU OF JUSTICE STATISTICS, BULLETIN: PRISONERS IN 2009, at 7 tbl.7(2010).
191. See ROBERT J. SAMPSON, GREAT AMERICAN CITY: CHICAGO AND THE ENDURING NEIGHBORHOOD EFFECT 22 (2012) ("[N]eighborhoods are not merely settings in which individuals act out the dramasproduced by autonomous and preset scripts . . but are important determinants of the quantity andquality of human behavior in their own right."); id. at 423 ("[E]ven the worst-off communitiescommand human assets and organizational potential that have not been fully harnessed. In fact . .
disadvantaged communities sometimes have rather high levels of other-regarding behavior and latentcollective efficacy that are otherwise suppressed by the cumulative disadvantages built up after repeatedeveryday challenges."). In a study comparing the lives of former juvenile offenders (discussed in THE GEORGETOWN LAW JOURNAL approach. One interesting early contribution comes from the work of Sheldonand Eleanor Glueck, married co-authors employed at Harvard Law School fromthe late 1920s to the 1950s, who conducted a seminal study of the lives of 500Boston juvenile delinquents.192 The Gluecks found that although most of thecohort ceased committing crime after turning twenty-five, a small minoritypersisted in criminal involvement. Decades later Harvard sociologist RobertSampson and criminologist John Laub reexamined the Gluecks' data to deter-mine if there were any criteria distinguishable from the early lives and criminaloffending of those men who went on to become persistently criminally involvedover the course of their lives.193 Sampson and Laub could not identify anyfactors present during childhood or adolescence that differentiated those youngmen who would pose a continuing menace and those who would desist fromcriminal activity following adolescence.194 There were, however, "turning points"in the men's lives—obtaining and maintaining employment and establishingcontacts with conventional institutions and groups—that distinguished thosewho continued to commit crime from those that did not.195 Further, men whohad been incarcerated in prison were substantially more likely to continue to further detail infra notes 192–97 and accompanying text), sociologist Robert Sampson and criminolo-gist John Laub found that: The majority of men we interviewed desisted from crime largely because they were able tocapitalize on key structural and situational circumstances. They often selected these structuraland situational circumstances (for example, they decided to get married, get that job, hang outwith those friends), but those institutions and relations in turn influenced the men aswell. . Men who desisted from crime were embedded in structured routines, socially bondedto . . others . . and were virtually and directly supervised and monitored. In other words,structures, situations, and persons offered nurturing and informal social control that facilitatedthe process of desistance from crime. .
. .
. . Generally, the persistent offenders we interviewed experienced residential instability . .
job instability . . and relatively long periods of incarceration. Except when in prison or jail,they were ‘social nomads,' to use Foucault's term.
JOHN H. LAUB & ROBERT J. SAMPSON, SHARED BEGINNINGS, DIVERGENT LIVES: DELINQUENT BOYS TO AGE70, at 279–80 (2003) (citations omitted). A distinct theoretical approach, which Professor Mary D. Fanhas called "rehabilitation pragmatism," shares some significant features in common with a decarcera-tion approach. The difference between rehabilitation pragmatism and conventional rehabilitation is thatthe rehabilitative intervention is not undertaken for the benefit of the individual defendant but instead inthe public interest to improve safety and reduce costs, with reliance on empirical data in selectingdefendants who are more likely to succeed. See Fan, supra note 48, at 45–56; see also Jessica S. Henry,The Second Chance Act of 2007, CRIM. L. BULL., Summer 2009, at art. 3 ("Rehabilitation, with an eyeto reentry, has been repackaged, not as way to improve the individual offender for his or her own sake,but rather as a way to improve public safety for all of society."); Joan Petersilia, California'sCorrectional Paradox of Excess and Deprivation, 37 CRIME & JUST. 207, 212 (2008) ("Well-run,well-targeted educational and vocational programs, substance abuse treatment, cognitive behavioraltherapies, and reentry partnerships can reduce recidivism by 5–30 percent.").
192. See SHELDON GLUECK & ELEANOR T. GLUECK, UNRAVELING JUVENILE DELIQUENCY (1950).
193. See LAUB & SAMPSON, supra note 191.
194. See id. at 113.
195. Id. at 114–49.
DECARCERATION COURTS offend than men who served only local jail time or probation.196 These factors—rather than personality characteristics, early offense characteristics, childhoodexperiences, or other factors—appeared to differentiate the perpetual offendersfrom those that went on to lead relatively law-abiding lives.197 Additional support for the hypothesis that social engagement and institutional involvement, or group-level effects, cause reduced criminal offending derivesfrom a significant body of further studies linking structural context and theprevalence of effective social organizations with decreased interpersonal vio-lence and neighborhood disorder.198 As important, this theory accords withknown social facts about the world: social institutions—employers, communityorganizations, families—convey social expectations and informally surveil thosewho participate in them. In a neighborhood where these institutions are function-ing effectively, people tend to be discouraged and inhibited from engaging incriminalized pursuits, and they will tend to have access to social supports in theevent they find themselves struggling with addiction or other personal chal-lenges.199 Nevertheless, it is important to acknowledge that social institutional engage- ment will not serve to dissuade all persons from criminal conduct, and someconventional social institutions may even be criminogenic.200 Indeed, employedpersons operating in firmly established institutional contexts perpetrate fraud,embezzle funds, and harm others.201 But conventional institutional engagementprovides some significant constraint on particular sorts of criminal offending 196. See id. at 188–90.
197. It is possible, of course, that the law-abiding men were otherwise disposed to obtain employ- ment and to establish conventional institutional ties, and that their social engagements were not thecause of their law-abiding turn. Instead, their turning points might have been the product of someunidentified additional factor—moral fortitude or personal perseverance. In other words, it might bethat some other variable besides social institutional involvement is the critical differentiating characteris-tic between offenders and nonoffenders, even if Sampson and Laub were unable to identify such avariable from the Gluecks' data.
198. See, e.g., Robert J. Sampson et al., Does Marriage Reduce Crime? A Counterfactual Approach to Within-Individual Causal Effects, 44 CRIMINOLOGY 465, 465 (2006) (analyzing data that "support[]the inference that states of marriage causally inhibit crime over the life course"); Robert J. Sampson etal., Neighborhoods and Violent Crime: A Multilevel Study of Collective Efficacy, 277 SCIENCE 918, 923(1997) (finding that a "combined measure of informal social control and cohesion and trust [was] arobust predictor of lower rates of violence"); Robert J. Sampson & William Julius Wilson, Toward aTheory of Race, Crime, and Urban Inequality, in CRIME AND INEQUALITY 37 (John Hagan & Ruth D.
Peterson eds., 1995).
199. It is widely recognized that reasonable educational opportunities, access to employment, and informal institutional social controls are associated with improved public safety. See ARNOLD S. LINKSY& MURRAY A. STRAUS, SOCIAL STRESS IN THE UNITED STATES: LINKS TO REGIONAL PATTERNS IN CRIME ANDILLNESS (1986). While incarceration drains resources from these areas, decarceration would makeavailable resources for these social sectors. But funds devoted to resource-intensive judicial monitoring,order-maintenance, and therapeutic court processes are unavailable for educational programs, jobtraining, healthcare, affordable housing, or other services.
200. See, e.g., David Friedrichs, Enron et al.: Paradigmatic White Collar Crime Cases for the New Century, 12 CRITICAL CRIMINOLOGY 113, 119–21 (2004) (examining the criminal organizational cultureof Enron as well as those of other large corporations, accounting firms, and law firms).
201. See id. at 114–16.
THE GEORGETOWN LAW JOURNAL and lacks the criminogenic and other harmful characteristics associated withprison or jail.
On a decarceration model, then, given the severe harms associated with large-scale incarceration and the compelling evidence that social institutionalengagement may address certain commonly criminally prosecuted forms ofsocially disruptive conduct more effectively than incarceration, non-carceralsentencing is preferred. The only circumstances under which a carceral sentencewould be imposed in a specialized criminal court adopting a pure decarcerationmodel would be where there is substantial reason to believe incarceration isnecessary to protect public safety or is otherwise necessary in the interests ofjustice. And to the extent there is doubt as to this determination, on a puredecarceration model that doubt would be resolved in favor of non-carceralsentencing unless and until incarceration becomes necessary.202 In such in-stances—for example, in cases of serious violent crime where the defendant isadjudged mentally well and that individual's prior record and most recentcriminal conduct suggests a serious ongoing risk to public safety—it is unlikelya defendant would be referred to a specialized diversionary court in the firstplace. Were that to occur, however, the case would be referred back to theconventional court. Though these determinations are inevitably complicated andinvolve assessment of uncertain risks, serious violent and dangerous defendantswho would continue to pose a grave threat—even if subject to an alternativesocially integrative sentencing regime of mental health treatment, job place-ment, and social service reporting—are a substantially smaller demographicthan that of the current population incarcerated in the United States.203 A decarceration model of specialized criminal law administration operates with reference to this framework, seeking to facilitate greater non-carceralsocial institutional integration of persons accused of an array of criminaloffenses. But apart from this commitment to attempting to reduce criminalinvolvement by improving access to other social institutions, a decarcerationmodel is untethered from any highly specified jurisprudential or institutionalcontent. Its sole unifying feature is that of closely empirically monitored 202. More generally, a decarceration model would aim to restrict incarceration over time only to those cases where persons are guilty of crimes so appalling the public's sense of justice requires it, suchas for serial killers; to matters where the convicted offender's prior criminal history is so extensive andserious that the risk of release would be too grave to manage; and to those who, once subject todiversionary sentencing, revealed themselves through subsequent offending to pose an ongoing threatto others.
203. See Key Facts at a Glance: State Prison Population by Offense Type, 1980–2006, BUREAU OF JUSTICE STATISTICS, http://bjs.ojp.usdoj.gov/content/glance/corrtyp.cfm (last revised Mar. 9, 2012) (report-ing that state prison populations as of 2006 consisted of approximately 100,000 persons convicted ofpublic order offenses, over 200,000 persons convicted of drug offenses, and over 200,000 personsconvicted of property offenses); see also GLAZE, supra note 1, at 1 fig.1; Homicide Trends in the U.S.:Homicide Victimization 1950–2005, BUREAU OF JUSTICE STATISTICS, http://bjs.ojp.usdoj.gov/content/homicide/tables/totalstab.cfm (last revised Mar. 9, 2012); Key Facts at a Glance: Percent of TotalCrime Reported to Police, BUREAU OF JUSTICE STATISTICS, http://bjs.ojp.usdoj.gov/content/glance/tables/reportingtypetab.cfm (last revised Mar. 9, 2012).
DECARCERATION COURTS experimentation with criminal law administrative alternatives so as to reducereliance on incarceration consistent with maintenance of public safety and to forge amore sociologically and empirically oriented criminal justice framework.
Courts adopting a pure decarceration approach would reject the court-based therapeutic methods of certain specialized criminal courts and the commitmentto judicial monitoring as a scalable manner of deterring criminal conduct. Afocus on order maintenance is abandoned too on a decarceration model, alongwith the associated commitment to broken windows policing. The purpose of adecarceration approach—more conducive to adoption by conventional courtsthan reformist approaches that entail providing therapy in a courtroom contextor transforming judges into probation officers, though certainly not typical oftraditionally conceived courts—is to oversee the adequate provision of servicesto the class of defendants referred to those services and appearing before thediversionary courts, predominately by monitoring the service providers. This isa role somewhat familiar to courts from the structural reform litigation context.204 Critically, courts adopting a decarceration model are experimentalist institu- tions that are open to revision in light of ongoing empirical feedback—they areunfinished, self-correcting, reformist organizations. The aspiration of a decarcera-tion model of specialized criminal law administration is to bring about criminallaw reform incrementally, revising policies in response to input from defen-dants, judges, prosecutors, public defenders, and empirical monitoring enti-ties.205 In this sense, a decarceration model is decidedly unfinished, promisinggradual reform rather than a bold new program fully specified in advance.206 A further advantage of a decarceration model is that it works to reduce reliance on incarceration while closely attending to the particular needs and 204. See, e.g., Abram Chayes, The Role of the Judge in Public Law Litigation, 89 HARV. L. REV.
1281, 1284 (1976).
205. See MALCOLM M. FEELEY, COURT REFORM ON TRIAL: WHY SIMPLE SOLUTIONS FAIL 209–10 (1983) (describing the "problem-oriented approach" as one that calls for "making incremental and unexcitingadjustments in the administration of existing [programs]"). A decarceration model may be understoodin this regard as adapting an approach elaborated by Scandanavian criminologist and political theoristThomas Mathiesen, who developed a theory of the unique promise of unfinished reforms. See THOMASMATHIESEN, THE POLITICS OF ABOLITION 13–28 (1974). For Mathiesen, the unfinished alternative emergeswhen we refuse "to remain silent concerning that which we cannot [yet] talk about"; in our graspingattempts to fashion a competing, contradictory, and in that sense new state of affairs, we "express theunfinished." See id. at 16. A decarceration model adopts precisely this approach, borrowing the nowfamiliar institutional home of the specialized criminal court to attempt to direct criminal law administra-tion in different directions, incrementally, experimentally, with sensitivity to empirical feedback, andwith the overall goal of facilitating a form of social order that is less reliant on conventional criminallaw frameworks and incarceration.
206. See FEELEY, supra note 205. Dorf and Sabel also underscore that experimentalist institutions are in an important sense always "unfinished." See Dorf & Sabel, supra note 13, at 860; see also MichaelC. Dorf, Legal Indeterminacy and Institutional Design, 78 N.Y.U. L. REV. 875, 940 (2003) (referring toproblem-oriented courts as "always a work in progress," and stating that "the very conditions uponwhich problem-solving courts insist in the actors they evaluate—openness and revisability in light ofexperience—apply as well to problem-solving courts themselves"). But see Super, supra note 24 andaccompanying text.
THE GEORGETOWN LAW JOURNAL risks associated with specific populations of defendants. The hope is that thiswill free up resources currently allocated to criminal law administration andmake them available for other sectors better suited to addressing the relevantunderlying problems. This may help to negotiate (if not to entirely avoid) thedecarceration trap that Professors Robert Weisberg and Joan Petersilia havecautioned against: the "grave risk of backfire if advocates attempt to reducemass incarceration simply for the sake of reduction rather than coupling advo-cacy with a full consideration of the causes of recidivism."207 Because, asWeisberg and Petersilia warn, "even if small increases in crime by releasedprisoners . . are not statistically meaningful, they may reignite the politicaldemagoguery that contributed to mass incarceration in the first place."208 Adecarceration model functions in an incrementalist fashion to reduce reliance onincarceration by experimenting with alternatives closely tailored to the needs ofpopulations currently subject to criminal supervision while attending to thecauses of recidivism and creating a record of demonstrated positive results.
A decarceration model also promises to attend to the risk of "transinstitution- alization," which Professor Bernard Harcourt has identified with regard tomentally ill incarcerated persons.209 Transinstitutionalization refers to the disas-trous experience encountered during the earlier attempt to deinstitutionalizepersons living in mental hospitals without accounting in any meaningful wayfor their integration elsewhere. Following the deinstitutionalization of hospitalsfor the mentally ill in the 1960s and 1970s, many persons released from mentalinstitutions either became homeless or were later reinstitutionalized in prisonsand jails.210 A decarceration model works to avoid this outcome of transferringpersons from one total carceral institution (prison or jail) to another totalinstitution (for example, a psychiatric hospital) by collaborating closely with,monitoring, and shifting resources to a continuum of networked though indepen-dent and mostly nonresidential service providers that address housing, mentalhealth, medical, and employment needs of low-income persons in a givendelimited geographic area.211 It is imperative to underscore, though, that in diverting certain categories of cases and defendants to sectors outside the criminal law administrative context,a decarceration approach should be understood as a partial strategy for decarcera-tion, not necessarily as a permanent criminal law administrative fixture nor as acomprehensive solution to the problems of overcriminalization and overincarcera- 207. See Weisberg & Petersilia, supra note 5, at 126.
208. Id.
209. Bernard E. Harcourt, Reducing Mass Incarceration: Lessons from the Deinstitutionalization of Mental Hospitals in the 1960s, 9 OHIO ST. J. CRIM. L. 53, 87–88 (2011).
210. See id. at 53–54, 87–88.
211. Cf. Weisberg, supra note 179, at 363–69 (examining how deinstitutionalization of the mentally ill in the 1970s was a catastrophe motivated in part by widely shared but unexamined notions of howgravely disabled people could be treated "in the community," with little thought devoted to how suchcare would actually be administered).
DECARCERATION COURTS tion. Rather, the decarceration model's more modest goal is to shift the manage-ment of social disorder, where possible, from criminal courts, probation orparole offices, jails, and prisons to a range of other institutions. Invariably,violent and otherwise criminal conduct will continue to intrude upon people'slives, and conventional criminal law administration will play a role, howeverimperfect, in responding to that conduct. A decarceration model promises tominimize such conduct, focus conventional criminal law resources where theyseem most plainly called for, and begin to respond to the problems of overcrimi-nalization and overincarceration by enlisting other social institutions more fullyin managing social disorder. Documented successful diversion of some casesmay form the basis for subsequent decriminalization of certain conduct (forinstance of particular drug offenses), while other offenses may entail harm thatwarrants a retained norm of criminalization (particularly where theft or violenceis involved) even as successful diversion may support substantially reducedreliance on incarceration for that category of offense or offender.
The remainder of this section will explore how different existing specialized criminal courts are functioning or could and should function on a decarcerationmodel. The criminal law reformist possibilities of a decarceration model arefurther explored in Part III. Objections to a specialized criminal law reformstrategy more generally are considered in Part IV.
Although many mental health courts adopt some combination of a therapeutic jurisprudence and judicial monitoring approach, mental health courts may alsoembrace a decarceration model, shifting resources for mentally ill persons fromthe criminal courts, jails, and prisons to other sectors. Mental health courtsoperating on a decarceration model seek to remove mentally ill individuals fromconventional criminal processing to a forum where the focus is on addressingholistically relevant needs so as to prevent subsequent criminal offending.
There is tremendous potential to accomplish significant decarceration by addressing mentally ill individuals' socially disruptive conduct outside thecontext of conventional criminal law administration. Roughly 500,000 mentallyill people are incarcerated in prisons and jails in the United States.212 Amongthe most common mental illnesses U.S. prisoners suffer are schizophrenia andbipolar disorder, both of which are amenable in many cases to effectivepsychiatric intervention.213 212. See, e.g., The New Asylums, PUB. BROAD. SERV., http://www.pbs.org/wgbh/pages/frontline/shows/ asylums/view/ (last visited Mar. 9, 2012). Reports suggest that between one fifth to one half ofprisoners in the United States suffer from a serious mental illness. In 2005, a Bureau of JusticeStatistics study found that more than half of the inmate population had a mental illness. See DORIS J.
JAMES & LAUREN E. GLAZE, BUREAU OF JUSTICE STATISTICS, SPECIAL REPORT: MENTAL HEALTH PROBLEMS OFPRISON AND JAIL INMATES 1 (2006). Other sources suggest that between sixteen to twenty percent ofprisoners in the United States are seriously mentally ill. See, e.g., Merrill Balassone, Jails, PrisonsIncreasingly Taking Care of Mentally Ill, WASH. POST, Jan. 23, 2011, http://www.washingtonpost.com/national/jails-prisons-increasingly-taking-care-of-mentally-ill/2011/01/21/ABo3WRJ_story.html.
213. See, e.g., Stephen Allen, Mental Health Treatment and the Criminal Justice System, 4 J. HEALTH & BIOMED. L. 153, 161–65 (2008).
THE GEORGETOWN LAW JOURNAL For the mentally ill, incarceration is frequently brutal and devastating and conditions of confinement routinely worsen rather than improve the relevantmental illnesses and associated disorderly conduct.214 As the U.S. SupremeCourt explained in Brown v. Plata: In California, "[b]ecause of a shortage oftreatment beds, suicidal inmates may be held for prolonged periods in telephone-booth sized cages without toilets."215 The Court included this image of theholding cages used for mentally ill individuals in California prisons216: 214. Gary Fields, No Way Out: Trapped by Rules, the Mentally Ill Languish in Prison, WALL ST. J., May 3, 2006, http://online.wsj.com/article/SB114662497280042311.html.
215. 131 S. Ct. 1910, 1924 (2011).
216. Id. at 1950 app. A.
DECARCERATION COURTS The majority opinion in Plata continued: A psychiatric expert reported observing an inmate who had been held in sucha cage for nearly 24 hours, standing in a pool of his own urine, unresponsiveand nearly catatonic. Prison officials explained they had "no place to puthim."217 The brutality of these conditions entailed by incarcerating large numbers ofmentally ill individuals, often in response to relatively minor offending criminalconduct, is sufficiently apparent as to require little further explication.
By contrast, on a decarceration model, mental health court teams—composed of a judge, prosecutor, defense counsel, social worker, and psychologist—workto identify mentally ill individuals who may be removed from conventionalcriminal carceral sentencing to alternative programming without excessive riskto public safety, leading Professor Shauhin Talesh to refer to mental healthcourts generally as "dynamic risk managers."218 Then, mental health courtteams work to locate sustainable psychiatric treatment, sustainable housingarrangements, and meaningful activity of some sort for participants to under-take.219 Mental health courts operating on a decarceration model monitorprovision of mental health treatment and other services to defendants.220 Theservice providers themselves have an informal surveiling function, and thecourts only need to intervene to conduct a revocation hearing or to increaseservice levels or monitoring if a defendant reveals himself or herself to pose asubstantial danger to others.221 The courts use outside referrals to apply acombination of risk assessment tools to develop programmatic interventions,including actuarial models to identify risk factors and more individualized 217. Id.; see also id. at 1926 ("Mentally ill inmates languished for months, or even years, without access to necessary care. They suffer from severe hallucinations, and they decompensate into catatonicstates." (alteration omitted) (quoting Coleman v. Wilson, 912 F. Supp. 1282, 1316 (E.D. Cal. 1995)(internal quotations marks omitted)).
218. Talesh, supra note 80, at 119–24.
219. According to Mental Health Court Judge Patrick Morris: A substantial number of these folks are so low functioning that you have to reduce your levelof expectations. Many are illiterate, and when you say, "Go to school," you may mean simply"Go [to] the county library and be engaged in a literacy program." What you want to do isessentially find a way to occupy them constructively . . Re-engage them with their family ifat all possible . . so that they have a support group out there and a daily activity to go tothat's meaningful and constructive. And it may be as simple as a volunteer position at ahomeless shelter . . but you look for a variety of ways to simply help them reconstruct a lifethat has some meaning to it, and that's about all you can do with some of these clients.
Id. at 122 n.191 (citing Interview with Judge Patrick Morris, Satellite Broadcast of Mental HealthCourts, Ctr. for Court Innovation (Nov. 14, 2002)).
220. See JUSTICE POLICY INST., supra note 73, at 19.
221. See, e.g., Matthew J. D'Emic, The Promise of Mental Health Courts: Brooklyn Criminal Justice System Experiments with Treatment as an Alternative to Prison, CRIM. JUST., Fall 2007, at 24, 26–27.
THE GEORGETOWN LAW JOURNAL clinical assessment.222 Perfect compliance with treatment and other orders is notexpected, and incarceration is used only as a last resort when all other lenientpolicies relating to noncompliance have failed.223 There is evidence that diver-sionary mental health courts may reduce reliance on incarceration in managingmentally ill persons, reduce reliance on in-patient psychiatric treatment, andimprove access to housing for program participants.224 Veterans courts operating on a decarceration model would similarly obtain local cooperation to manage the cases of referred veterans through non-carceralsentencing, such as through referral to Veterans Affairs programs as in the caseof Eifert recounted in this Article's introduction.225 If community courts are tofunction on a decarceration model, they would need to limit their jurisdiction tomatters in which defendants would otherwise likely be subject to incarcera-tion.226 Drug courts may function on a decarceration model, accomplishing some measure of de facto decriminalization by sentencing drug-involved defendantsto treatment and non-revocable or revocation-limited probation. When statelegislatures pass drug court acts or related legislation authorizing this non-carceral drug court approach, the effect is to bypass political barriers to moreexplicit decriminalization and to lend democratic legitimacy to drug courts' 222. See, e.g., Talesh, supra note 80, at 113–15 ("Mental health courts have a unique, clinically- based risk management model that is routinely updated and altered and relies on dynamic assess-ment.").
223. See, e.g., Shoaf, supra note 128, at 991 ("Jail time is used only when deemed absolutely necessary, and is usually for a short period of time such as three, five, or ten days. If the client iseventually terminated from the program, any jail time served is put towards the remaining time theclient may have on his or her original sentence."); Talesh, supra note 80, at 119 & n.174; see also MarkA.R. Kleiman, The Outpatient Prison, AM. INT., Spring 2010, at 45 (reporting reduced incarceration andrecidivism in Hawaii program that applied short and certain carceral sanctions to high-risk group ofdrug addicted ex-offenders).
224. See, e.g., Richard D. Schneider, Mental Health Courts, 21 CURRENT OPINION IN PSYCHIATRY 510, 510–11 (2008) (reporting range of positive outcomes associated with mental health courts); see alsoTeresa W. Carns et al., Therapeutic Justice in Alaska's Courts, 19 ALASKA L. REV. 1, 28–29 (2002)(reporting that evaluation of Alaska's mental health court reflected that participants experiencedreduced mental hospital admissions, reduced criminal justice involvement, and improved housingplacement). But see Christine M. Sarteschi et al., Assessing the Effectiveness of Mental Health Courts:A Quantitative Review, 39 J. CRIM. JUST. 12 (2011) (reporting findings that suggest mental health courtsare an effective intervention with respect to both recidivism and clinical outcomes but noting findingsare limited by methodological weaknesses of existing studies); see also Richard J. Bonnie & JohnMonahan, From Coercion to Contract: Reframing the Debate on Mandated Community Treatment forPeople with Mental Disorders, 29 LAW & HUM. BEHAV. 485, 485 (2005) (analyzing the types andfeatures of mandated community treatment that are tied to "some form of ‘leverage' in whichdeprivations such as jail or hospitalization have been avoided, or rewards such as money or housinghave been obtained [by persons with mental disorders], contingent on treatment adherence").
225. See, e.g., Dahlia Lithwick, A Separate Peace: Specialized Courts for War Veterans Work Wonders. But Why Stop at Veterans?, SLATE (Feb. 11, 2010, 1:33 PM), http://www.slate.com/articles/news_and_politics/jurisprudence/ 2010/02/a_separate_peace.html.
226. See Marsha Weissman, Aspiring to the Impracticable: Alternatives to Incarceration in the Era of Mass Incarceration, 33 N.Y.U. REV. L. & SOC. CHANGE 235, 239–40 (2009) (discussing the need toavoid the dangers of net widening in implementing alternatives to incarceration programs).
DECARCERATION COURTS Reentry courts may also operate on a decarceration model. Parole or proba- tion violators constitute approximately 50–65% of people admitted to stateprison, and about half of these individuals are re-incarcerated for technicalviolations.228 Reentry courts may facilitate access to social services and employ-ment and rely on those referral sources for notification of extremely concerningnoncompliance but otherwise sharply limit reincarceration for technical viola-tions.229 Although most domestic violence courts function on a judicial monitoring model of limited effectiveness and with substantial associated rights-eviscerat-ing risks, domestic violence courts could shift to a decarceration model forcertain cases arising from relatively less serious and less violent incidents.
Alternative sentences could still be onerous and require, among other condi-tions, considerable financial support of and physical separation from the com-plainant. These provisions might better serve the interests of the complainantspouse than incarceration for short periods of a spouse who is the primarysource of financial support for the family.230 Courts could also work to facilitateservices for complainants—as do many domestic violence courts currently—particularly because the availability of alternative living arrangements, employ-ment opportunities, or vocational or educational training may empower survivorsof domestic violence to leave or transform abusive relationships and, hence, inthe long-run reduce reoffending, re-arrests, and reincarceration. Sex offensecourts are generally conceptualized primarily on a judicial monitoring modelbut could also shift to a decarceration model by identifying those individualswhose convictions are such that carceral sentencing seems unnecessary (forinstance, individuals convicted on the basis of public urination, certain otherforms of indecent exposure, or consensual sex with a person not significantlyyounger than the accused).231 227. See, e.g., Daniel T. Eismann, Three Branches of Government Working Together Effectively Have Made Idaho a Leader, THE ADVOCATE: OFFICIAL PUBLICATION OF THE IDAHO STATE BAR, Sept. 2008,at 12, 12 ("In 2001, the legislature enacted the Idaho Drug Court Act to provide a statutory frameworkfor implementing drug courts throughout the state.").
228. AUSTIN ET AL., supra note 182, at 23. According to the U.S. Department of Justice, parole violators returned to prison serve eighteen months on average before being released again. Id. InLouisiana, technical violators serve an average of twenty months before being re-released. See id. 229. After the Harlem Parole Reentry Court learned judicial monitoring was associated with increased reincarceration, it began to shift to something approaching a decarceration model, seeking toreduce judicial surveillance and revocation to jail for technical violations. See HAMILTON, supra note141, at 33 ("In New York State a policy shift occurred in 2006, resulting in parole officers making aconcerted effort not to revoke parolees based on technical violations."); see also id. at 30 ("[I]n the daysahead the Reentry Court might consider exploring alternative responses to technical infractions, such asincreased use of intermediate sanctions in lieu of revocation.").
230. See, e.g., Quinn, supra note 14, at 68 ("Women's problems frequently are exacerbated rather than solved by a lack of financial and other support from their incarcerated partners.").
231. See, e.g., New Sex Offender Court Being Set Up in Pittsburgh, ASSOCIATED PRESS, May 4, 2011, http://www.buffalonews.com/wire-feeds/state/article412890.ece (describing the goals and design ofPittsburgh's sex offender court).
THE GEORGETOWN LAW JOURNAL In all of these separate specialized criminal court contexts, a decarceration model does not purport to be capable of solving the underlying problems.
Instead, a decarceration model frees up resources that might be allocated tosectors better able to address relevant problems, even if the problems ultimatelyremain in some measure intractable, at least without further-reaching interven-tion. A decarceration model is minimalist in its mission as compared to compet-ing criminal law reformist models, at least with regard to the degree ofintervention taking place in the court itself. Empirical monitoring may establishthe basis for transferring this framework outside the specialized courts context,facilitating farther-reaching transformative criminal law reform. Gradually, inan incremental experimentalist fashion, a decarceration model may begin toreform criminal law more broadly by working to address the compound prob-lem of the criminal law's relationship to social-order maintenance and the socialconditions associated with targeted conduct, moving the regulation of certainmatters outside criminal law administration to other sectors.
In summary, the upshot of the Article's analysis to this point is that if specialized criminal courts aim to begin to reduce harshness and brutality incriminal law administration and to limit reliance on criminal supervision andincarceration while addressing socially disruptive conduct, they should organizethemselves predominantly on a diversionary, minimalist, experimental, sociologi-cally oriented decarceration model. The therapeutic, judicial monitoring, andorder maintenance models represent distinct criminal law reformist strategiesthat threaten to exacerbate rather than unwind existing problems in criminal lawadministration because they each possess inherent features that tend to increasereliance on criminal supervision and that may even expand incarceration—radically transforming the judicial role and diluting procedural protections moresignificantly than on a decarceration model, without generating other demon-strated desirable outcomes.
The following Part will explore in more detail three criminal law reform strategies that courts adopting a decarceration model may set in motion. Part IVwill address anticipated objections.
III. POSSIBILITIES OF A DECARCERATION MODEL Much of the reformist promise of a decarceration model lies in the associated courts' ability to begin to redirect criminal law administration more generallythrough three primary strategies: (1) cognitive reframing; (2) institutional rein-vention; and (3) systemic change. The following subsections attend to each ofthese three strategies in turn.
A. COGNITIVE REFRAMING Specialized criminal courts adopting a decarceration model hold the potential to reframe shared understandings of criminalized conduct, developing alterna-tive approaches to an array of matters currently managed in large part through DECARCERATION COURTS criminal supervision and incarceration. Reframing common conceptions ofcrime and punishment is a critical component of any decarceration strategybecause to shift the management of social order from criminal law administra-tion to other institutions will require changed public understandings of whenincarceration is called for and what viable alternatives might entail.
Before turning to the mechanisms by which courts adopting a decarceration model may reframe the criminal law's response to various forms of criminallycharged conduct, a brief detour into the literature on framing is in order.
Framing is a process explored widely in psychological,232 political science,233sociological,234 and legal scholarship,235 so I will only quickly define thedimensions of framing relevant for present purposes.
In short, a "frame" is a mental structure through which we understand the world and which serves to organize perception.236 Frames are generated throughinteractive social processes237 and they shape how people construct meaning,identify problems, and determine to resolve those problems, often operatingunconsciously to inform individual and collective decision making.238 How aparticular problem or choice is framed significantly influences the way in whichpeople proceed to address the situation.239 For example, a public-health framingof the problem of drug use might suggest drug treatment as a preferred solution;a moralistic framing of drug use as an unethical failure of will might suggest acriminally punitive response. Likewise, a mental health framing of veterans' ormentally ill persons' antisocial conduct might suggest a coordinated reaction ofclinical treatment and social service provision, whereas a framing of suchpersons as dangerous and unmanageable criminals likely would suggest acarceral response.
Despite the powerful influence exerted by existing frames, reframing occurs routinely, contributing to shifting social understandings. In effect, reframingreorganizes intuitions and understanding, generating different frames, often byintroducing alternative ways of speaking about and approaching (and regulat-ing) the dimension of the world in question.240 232. See, e.g., Amos Tversky & Daniel Kahneman, The Framing of Decisions and the Psychology of Choice, 211 SCIENCE 453 (1981).
233. See, e.g., DONALD A. SCHO¨N & MARTIN REIN, FRAME REFLECTION: TOWARD THE RESOLUTION OF INTRACTABLE POLICY CONTROVERSIES (1994).
234. See, e.g., Robert D. Benford & David A. Snow, Framing Processes and Social Movements: An Overview and Assessment, 26 ANN. REV. SOC. 611, 614 (2000).
235. See, e.g., Amy Kapczynski, The Access to Knowledge Mobilization and the New Politics of Intellectual Property, 117 YALE L.J. 804, 813–18 (2008).
236. ERVING GOFFMAN, FRAME ANALYSIS: AN ESSAY ON THE ORGANIZATION OF EXPERIENCE 21 (1974).
237. See, e.g., Benford & Snow, supra note 234.
238. See, e.g., Tversky & Kahneman, supra note 232; see also GOFFMAN, supra note 236.
239. See RICHARD H. THALER & CASS R. SUNSTEIN, NUDGE: IMPROVING DECISIONS ABOUT HEALTH, WEALTH, AND HAPPINESS 3–4 (2008).
240. Another related, though distinct, way to characterize the process of reframing is in terms of changing or ambiguating social meaning. See, e.g., Lawrence Lessig, The Regulation of SocialMeaning, 62 U. CHI. L. REV. 943, 1039–42 (1995). According to Lessig: THE GEORGETOWN LAW JOURNAL Social psychologist John M. Darley explains one way in which intuitions may change as abstract reasoning overrides less reflective judgment.241 Cogni-tive psychologists refer to this as dual processing: "One process, producedrapidly, takes place non-optionally . . The second set of processes involvesabstract reasoning areas of the brain, and is not always triggered into ac-tion. . [W]hen this reasoning system is activated, it sometimes overridesintuitions."242 Over time, cognitive frames may shift through the contestation,embrace, and repetition of competing frames in different social and culturalcontexts.
In the criminal law context, frames are routinely invoked in ways that shape how people imagine particular forms of disfavored conduct ought to be man-aged.243 In a provocative article on what he called "Interpretive Construction inthe Substantive Criminal Law," Mark Kelman revealed how certain framesshape whether the conduct of a criminally accused person is understood asmorally blameworthy, as an appropriate subject of criminal punishment, or asexcusable.244 Though Kelman did not himself rely on the conceptual apparatusof cognitive framing, his analysis offered an account of how framing occurs inthe context of criminal law administration through the selection of time frames(narrow or broad) and intentionalist versus determinist interpretations of behav-ior, among other interpretive schemes.245 Narrow versus broad time framinginfluences perceptions of the degree of culpability of a defendant, enabling orundermining the view of that defendant as morally responsible (on an intention-alist account) or as significantly constrained and, hence, less responsible insome relevant respect (a determinist interpretation).246 A decarceration model of specialized criminal law administration offers an alternative perspective on the necessity of incarceration; on structural, neighbor-hood-level mechanisms that may inhibit crime; as well as on time-framing,moral responsibility, and blaming practices in criminal law. And it asserts thesealternative frames in local, state, and national contexts. The process by which [S]ocial meanings . . are used by individuals, or groups, to advance individual or collectiveends; and . . their force in part hangs upon their resting upon a certain uncontested, ortaken-for-granted, background of thought or expectation . .
. .
. . [Change in social meanings] proceeds by remaking that which is taken for granted, andwhich gives a particular text an unwanted meaning. It functions by switching on newassociations. This breaking up, or remaking, requires effort; it follows from a practice.
See id. at 951, 962.
241. See John Darley, Realism on Change in Moral Intuitions, 77 U. CHI. L. REV. 1643, 1649 (2010).
242. Id.
243. See, e.g., FRIEDMAN, supra note 111, at 10 (discussing the "teaching function" of U.S. criminal 244. See Mark Kelman, Interpretive Construction in the Substantive Criminal Law, 33 STAN. L. REV.
591, 592–98 (1981).
245. See id. at 593–96.
246. See id. DECARCERATION COURTS courts adopting a decarceration model reframe understandings of particularcategories of crime and offenders begins with a dialogue between architects ofspecialized criminal courts, prosecutors, public defenders, and defendants.247Collectively, these actors forge a different account of the causes and conse-quences of certain criminal offenses. For example, veterans courts and mentalhealth courts have made considerable headway in advancing a regime oftreatment rather than incarceration in response to socially disruptive conduct onthe part of veterans and mentally ill persons; other specialized criminal courtshave introduced with substantial success a revised approach to drug offensesinvolving treatment and irrevocable or rarely revocable probation. Over time,this understanding is embraced, at least to some extent, by those who interactwith the specialized criminal court itself and by other relevant criminal lawadministrative actors: police, prosecutors, defense counsel, and judges. Thesealternative frames are diffused through the court to the various individuals thatcome into contact with the court. Eventually, the reconfigured framework maybe taken up by actors outside the specialized court. The publication anddissemination of empirical analyses of court outcomes may allow for broadercirculation of a proposed framework for reform.
Consider again the veterans courts program in Okemos, Michigan and the case of Staff Sgt. Brad Eifert introduced in this Article's introduction. Eifertserved in Iraq and lives in Okemos, which is one of the approximately eightyjurisdictions in the United States with a veterans court. After returning fromIraq, Eifert struggled with depression, alcohol, and his own anger until he took agun and initiated a confrontation with the police of a kind sometimes referred toas "suicide by cop."248 Although he faced charges carrying multiple potentiallife sentences, he was ultimately permitted to participate in a diversionary courtprogram that may result in a dismissal of all charges.249 The procedures whereby Eifert came to be admitted to the diversionary program reflect the reframing processes potentially introduced through a special-ized criminal court adopting a decarceration approach. In the first instance, toestablish a veterans court, judges and other advocates introduce a differentframing of responsibility for the criminal conduct in question. In the veteranscourt context, this entails reframing veterans' socially disruptive acts as, tosome extent, a shared responsibility occasioned by the fact that these individu-als have been sent by elected officials into harm's way, resulting in theirinability to function in a socially acceptable manner. The offending behavior inquestion is also reframed as something other than a deliberately criminaltransgression, warranting blame and carceral punishment. Instead, veterans'socially disruptive conduct is recharacterized as a manifestation, in part, of whatBuffalo, New York's Veterans Court Judge Robert T. Russell has called the 247. See, e.g., Dorf & Sabel, supra note 13, at 832.
248. See Goode, supra note 15.
249. See id. THE GEORGETOWN LAW JOURNAL "invisible wounds of war."250 Judge Russell said of his Veterans Court in aninterview with the New York Times: "I don't interpret it as excusing behavior,but as addressing what the behavior is."251 In galvanizing support to createveterans court programs, the courts' architects invoke repeatedly this set ofcontending frames, differently characterizing the defendants and offendingconduct to be addressed by the court, both at the local level and also on a stateand national stage through media and other public engagements.
Then, when the court is operational, the process of moving particular defen- dants into that court itself engages and reframes the way different key actors inthe local criminal process understand the problems at hand. For Eifert to beadmitted to the diversionary program, the judge, defense counsel, prosecutors,and police all had to agree on the transfer. The judge had to consider whetherEifert could be admitted given that his case involved the use of a firearm andthreat of injury to police officers. Defense counsel advocated for Eifert'sadmission and ultimately convinced the judge. Initially, though, the prosecutor'soffice "was not going to play at all," according to Eifert's counsel. But eventu-ally, as Eifert's lawyer introduced a differently framed interpretation of thecase—calling attention to the severity of Eifert's post-traumatic stress disorderand his decision not to harm the officers when, as a trained marksman, he couldhave done so—the prosecution adjusted its position. Then, the assistant prosecu-tor had to engage the police officers who had been in the woods that night whenEifert was firing shots. The case had been debated in local news venues withsome arguing that Eifert should receive a life sentence and others urging a morelenient response. In the end, the officers were persuaded to agree to Eifert'sadmission to the veterans court and in public comment, one officer, who statedhe feared for his life that night, concluded: "I don't think any of us would notwant him to get treatment . . There's a difference between somebody who's acriminal and someone who's just in a perfect storm of things going wrong."252 The line between those two figures—the criminal and the person "in a perfect storm of things going wrong"—may not in fact be clear at all in the vastmajority of criminal cases, but veterans courts reintroduce a determinist frame,a collectivist frame, and a broader time frame for a range of conduct in waysthat shift public understandings of a significant group of defendants, veterans,and a variety of criminalized conduct. Ongoing media attention to specializedcriminal courts carries the reframed understandings in particular jurisdictions,such as in Okemos, Michigan where Eifert's case unfolded, to a broadernational audience.
Judges operating in specialized criminal courts understand that they are engaged in a strategic undertaking focused in large part on shifting publicperceptions about the appropriate scope of criminal law and punishment. As 250. See id.
251. See id.
252. See id. DECARCERATION COURTS Judge Ginger Lerner-Wren of the Broward County Mental Health Court relayedin comments excerpted in this Article's introduction: "We view the MentalHealth Court as a ‘strategy' to bring fairness to the administration of justice forpersons being arrested on minor offenses who suffer from major mental disabil-ity."253 This strategy of reframing particular defendants and criminalized behav-iors as suited for alternative forms of social response apart from the criminallaw is a crucial part of the work of a veterans or mental health court and of adecarceration approach more generally.
It is important to note, however, that this strategy is not without important limits: the success of reframing and of admission to the programs depends onthe zealous advocacy of defense counsel and on the openness of the judge andprosecutor. While measures could (and perhaps should) be taken to limitprosecutorial discretion in the referral process, the cooperation of prosecutorscontributes to the reframing work in which the court is engaged.
In any case, despite its limits, through this strategy specialized criminal courts have generated some significant reconceptualization of how to approachparticular categories of offenses and offenders. These changes generally beginwith judges and lawyers working within the courts. Chief Judge JonathanLippman of the New York Court of Appeals, for instance, has suggested that:"When it comes to non-violent crime, we have changed how judges and lawyersmeasure success—no longer by the number of dispositions, convictions, oracquittals but by whether we are able to break the cycle of addiction and crimeand improve public safety."254 Judge Clinton Deveaux reports that, although hisjudicial colleagues used to deride his specialized criminal court work as that ofa "social worker on the bench," in due course other judges started to refer casesto his court and reported adopting some similar approaches in their ownconventional courts, acknowledging that "this is the only way to deal with thisstuff if you're going to actually stop the recidivism and actually solve some ofthe problems that are bringing these people to the court."255 Transfer ofreframed conceptions also is likely to occur through the transfer of judges fromthe specialized criminal court back to the conventional court. When judgesmove between a specialized criminal court and a conventional court, manyreport that they continue to apply in part the approach developed in thealternative court context to the extent allowable.256 253. DENCKLA & BERMAN, supra note 16, at 17 (emphasis added).
254. Lippman, supra note 77, at 1055.
255. NOLAN, supra note 7, at 21 (quoting Judge Deveaux, who presides over an Atlanta community 256. BERMAN & FEINBLATT, supra note 7, at 196 ("There was general agreement among the judges that taking ideas from problem-solving courts was not only possible but desirable. They highlightedseveral things that they had learned from their time in problem-solving courts—including the value of aproblem-solving mindset, direct interaction with defendants, monitoring offenders' performance intreatment, and reaching out to social service providers—that were appropriate for mainstream use . . ");see also JUDGING IN A THERAPEUTIC KEY: THERAPEUTIC JURISPRUDENCE AND THE COURTS 87 (Bruce J. Winick& David B. Wexler eds., 2003) ("[M]any former problem solving court judges, upon being transferred THE GEORGETOWN LAW JOURNAL Beyond the level of reshaping the perspectives of individual court personnel, judges and other institutional actors frequently adapt the courtroom to functionas public theatre and publicize through the media the aspirations of theirrespective courts. As a consequence, large numbers of cases are not necessarilyrequired for the courts to shift understandings on a broader scale.257 Thisaddresses one challenge for specialized criminal courts: namely, that theycannot reasonably be brought to scale. Active engagement of judges, lawyers,and social scientists involved with diversionary courts in reframing certain ofthe criminal law problems at stake in the courts allows the courts broader reachthan that provided by the relatively limited number of cases they are able toprocess at any given time.
Additionally, through empirical monitoring of the courts, a decarceration model helps determine whether incarceration is necessary or advisable forcertain kinds of crimes and defendants, balancing important concerns aboutpublic safety and criminal law reform goals. Many administrators of specializedcriminal courts, often alongside external empirical monitoring entities, closelytrack the outcomes regarding recidivism and other variables for participants innon-carceral programming relative to similarly situated persons subject toconventional criminal supervision and/or incarceration. If a decarceration ap-proach is able to demonstrate that reliance on incarceration can be diminishedwithout imperiling public safety, this approach may reframe public attitudesregarding incarceration more broadly—providing the basis for a large-scalereasoned rethinking of prison- and jail-based social order maintenance.258 The process of disseminating empirical analyses is well underway with drug courts. In a quasi-experimental study released in June 2011, a team of socialscientists working with the Urban Institute and funded by the U.S. Departmentof Justice examined the outcomes regarding criminal recidivism and drugrelapse for participants in twenty-three drug courts and six comparison sites.259Using a combination of statistical techniques to correct for potential selectionbias, attrition bias, and clustering of outcomes within sites, the study's authorsfound that drug courts significantly reduce criminal recidivism and drug useafter eighteen months as compared to the outcomes for similar individuals in thecomparison sites.260 In July 2011, the Senate Judiciary Committee convenedhearings regarding this and related studies to explore expanded funding forspecialized criminal courts relying on alternatives to incarceration, with specific back to courts of general jurisdiction, have taken with them the tools and sensitivities they haveacquired in those newer courts.").
257. See, e.g., D'Emic, supra note 221.
258. Cf. Sharon Dolovich, Foreword: Incarceration American-Style, 3 HARV. L. & POL'Y REV. 237, 258 (2009) (examining the link in popular imagination between safety and incarceration).
259. See ROSSMAN ET AL., supra note 12, at 1.
260. See id. at 2–7.
DECARCERATION COURTS emphasis on drug courts and veterans courts.261 In time, empirical analyses ofthis sort may facilitate alternative framings that would enable legislative re-forms markedly scaling back sentence lengths across the board.
Though specialized criminal courts have generally started with jurisdiction only over a very limited class of offenders or offenses, typically the courts'authority expands and an increasing range of cases come before the courts. Forexample, drug courts began by accepting drug possession cases but over timehave expanded to include individuals arrested for forgery, burglary, and othercrimes believed to be associated with drug addiction.262 This occurs in part dueto the cognitive reframing that the courts enable: drug crime is characterized toinclude not only narcotics possession and sales offenses but also conductmotivated by drug addiction.
Once diversionary specialized criminal courts have become an established alternative means of addressing drug offenses and the socially disruptive con-duct of veterans or the mentally ill, broader shifts in social understanding maybe set in motion. The diversionary alternatives introduce a new institutionalframework for managing the problems in question. The existence of theseprograms normalizes the alternative responses. And the availability of a paralleldiversionary alternative for a significant class of cases makes available a set ofreasons why diversion may be preferable in other contexts—a potentiallytransposable "reasoned override" to the automatic invocation of conventionalcriminal law frameworks.263 The contagion of the diversionary approach isconfirmed by the experience of the past decade during which time diversionarycourts have rapidly multiplied in numerous areas and expanded to cover moreserious offenses.
The alternative framings of crime and punishment emerging through the work of specialized criminal courts, particularly those adopting a diversionarydecarceration approach, hold the promise to shift considerably and broadlypublic conceptions of various problems currently managed through criminalprosecution and incarceration.
B. INSTITUTIONAL REINVENTION Along with reframing social understandings of crime and punishment, a decarceration model may also reshape criminal law administrative institutionsby introducing additional tasks for judges, defense counsel, and prosecutors.
Further, a decarceration model incorporates novel players into specializedcriminal courts' work, in part by facilitating partnerships with local organiza-tions and social service providers.264 261. See Drug and Veterans' Treatment Courts: Seeking Cost-Effective Solutions for Protecting Public Safety and Reducing Recidivism: Hearing Before the Subcomm. on Crime and Terrorism of theS. Comm. on the Judiciary, 112th Cong. (2011).
262. See supra notes 70–71 and accompanying text.
263. See supra notes 241–42 and accompanying text.
264. See Dorf & Sabel, supra note 13, at 865–68.
THE GEORGETOWN LAW JOURNAL The roles of the judge and the parties on a decarceration model are all in flux, but, unlike on the therapeutic jurisprudence or judicial monitoring models, theserole shifts are relatively consistent with preservation of conventional valuesrespectively associated with these roles. The primary work of the judge on adecarceration model is to convene the parties and service providers; to overseethe negotiation of a diversion plan; to monitor performance of diversion pro-grams; and then to be available to adjudicate motions for sanctions shouldmajor noncompliance become an issue. The judge on a decarceration modelplays a far less active role than on a therapeutic, judicial monitoring, or ordermaintenance model, requiring only one or two days of work per week in thespecialized court. The courts' institutional design facilitates conscientiousnessabout procedural protections, particularly in sanctions proceedings, and it aimsto make transparent the reasons behind court orders.265 On a decarcerationmodel, the judge also often serves as a spokesperson for a decarceration strategyand for experimental, empirically informed criminal law administration.266 Defense counsel's role shifts too, such that his or her most critical function involves negotiating the terms on which a defendant opts into the diversionarycourt. Because specialized criminal courts are configured differently with regardto the consequences of failure in terms of sentence penalties, informed counselat this stage is extremely important. Defense counsel continues to play a role insafeguarding a defendant's procedural rights and other interests throughout theprocess, especially when motions for sanctions arise. Defense counsel may playa critical part as well in ensuring that the court actually reduces carceralsentencing, as opposed to on a therapeutic approach where defense counsel mayacquiesce in a carceral sentence for its presumed therapeutic effect, or inconventional courts where much defense work involves brokering plea dealsand rarely actively contesting evidence, let alone conducting trials.267 The role shift on a decarceration model is perhaps most dramatic for prosecu- tors. Embracing a decarceration approach for prosecutors entails that theiroffices operate not simply by seeking the toughest charges and sentences forcriminal defendants, but that they work also on strengthening public safety andadvancing justice in a broader context.268 Prosecutors on a decarceration model 265. See HAMILTON, supra note 141, at 9 ("[T]he judge is responsible for openly and publicly discussing program requirements, sanctions and their purposes.").
266. See, e.g., D'Emic, supra note 221.
267. See BERMAN & FEINBLATT, supra note 7, at 87 ("Public defenders, who would normally object to a client's revealing any extraneous personal information, are apt to accept these conversations, knowingthat encouraging words from an authority figure like the judge can be extremely helpful to a clientstruggling to achieve sobriety."); Tamar M. Meekins, Risky Business: Criminal Specialty Courts andthe Ethical Obligations of the Zealous Criminal Defender, 12 BERKELEY J. CRIM. L. 75 (2007).
268. See, e.g., Levine, supra note 74, at 1125 ("I think if you were to ask most prosecutors what their goals are, they would say: ‘My job is to put bad guys away.' That goal is endorsed by oureducation and by our culture . . If you were to change the goal slightly . . that completely changesboth the methods that you use, the partners you choose, and every single aspect of what you do."(quoting John Feinblatt & Derek Denckla, What Does It Mean To Be a Good Lawyer?: Prosecutors, DECARCERATION COURTS focus their conventional prosecutorial resources on more serious violent orproperty crimes where conventional criminal proceedings are most warrantedand refer to specialized courts or drop charges in those matters where non-carceral sentencing is possible. Prosecutors committed to decarceration alsodevote their resources in part to enabling alternatives to incarceration. Taking upin some significant manner a decarceration agenda, the Brooklyn DistrictAttorney's Office, for example, has pioneered several alternatives-to-incarcera-tion programs. These initiatives emerged before the proliferation of specializedcriminal courts, suggesting that a decarceration approach may have broaderpotential to restructure a prosecutorial agenda beyond specialized courts.269 In1990, Brooklyn's D.A. Charles "Joe" Hynes introduced a diversion programthat allowed nonviolent drug offenders to enter substance abuse treatmentinstead of receiving a conventional criminal sentence. By the late 1990s, theD.A.'s Office was organizing community group gatherings across Brooklyn tolink individuals on parole or probation to jobs, housing, and treatment pro-grams.270 This work does not require prosecutors to cease prosecuting cases ofserious crime, but it suggests that prosecutors can play an important part indecarceration strategies by augmenting the prosecutorial function and organiza-tional mission.
Beyond reshaping the roles of existing players in criminal courts, a decarcera- tion model introduces additional players. One notable new player is the re-sources coordinator—a position increasingly institutionalized in criminal lawadministrative systems more broadly.271 Resource coordinators work to linkdefendants to services, treatment, and housing, and they work to address otherrelated cross-sector collaborative efforts of the courts.
Finally, specialized criminal courts operating on a decarceration model may work to shift the institutional form and function of the courts themselves. As ithas begun to adopt to a greater extent a decarceration mission, the reentry courtin Harlem, for example, has appropriated the form of the parole revocationcourt but has become less court-like, functioning simultaneously as a clearing-house for job placement, mental health care, and legal advice, aiming to changelocal opportunities for ex-offenders and to facilitate more general economicdevelopment programs in East Harlem.272 Over time, as these courts becomeresource clearinghouses rather than primarily sites for processing guilty pleas or Defenders and Problem-Solving Courts, 84 JUDICATURE 206, 209 (2001) (quoting Elizabeth Glazer)(second alteration in original))).
269. See, e.g., Bruce Western, Reentry: Reversing Mass Imprisonment, BOS. REV., July/Aug. 2008.
270. See id. at 9–10.
271. See, e.g., Interview by Carolyn Turgeon with Judge John Leventhal, supra note 85 ("Then we got a grant for a resource coordinator, a position that has now been institutionalized in the system.").
272. See HAMILTON, supra note 141, at 11. As a defendant in another specialized criminal court reported: "It's not over when you get out of this [graduate the program] . . If you needed help orsomething, or . . lost your job and you needed help doing a resume or you needed help findingemployment, you can come back here in this door here and they're going to do anything they can tohelp you out." FAROLE & CISSNER, supra note 132, at 7 (alterations in original).
THE GEORGETOWN LAW JOURNAL parole revocations, this may work to transform diversionary courts from crimi-nal courts into different institutions altogether, focusing conventional criminallaw resources on the most serious forms of violent and property crime andlending support to a range of different local social and economic developmentinitiatives.
C. SYSTEMIC CHANGE Through both reframed understandings and institutional reinvention, a decar- ceration model may enable broader systemic change: altering conceptual ap-proaches to prevalent social problems, freeing financial resources for otherinitiatives, increasing the level of accountability of service providers in diversion-ary collaborations, politicizing court actors regarding the limits of availablealternative programming, and transforming the manner in which criminal law isadministered more generally. First, by marshaling support for particular types ofsocial service interventions, a decarceration model directs attention and finan-cial resources to public health, mental health, housing, and other services thatmight not otherwise be available.273 Particularly during times of fiscal austerity,as resources are cut for mental health and other public health programs, adecarceration approach may free resources that could be allocated to treatmentinitiatives.274 As prisons close, additional resources may be freed for otherinitiatives.275 In this regard, specialized criminal courts function as a potentialvehicle for "justice reinvestment;" as the former Executive Director of theNational Association of Drug Court Professionals, Karen Freeman-Wilson,explained, "the ultimate idea is to shift the resources from the departments ofcorrection and other places where that money could be put to better use."276 These courts may also bring about systemic change by influencing how the problems confronting criminal courts—for instance, mental illness—are man-aged in other parallel institutions, such as in cities' public health and publiclysubsidized housing systems. Monitoring the provision of services in diversion-ary programs provides an additional layer of accountability for those sectors.277Through this monitoring, the courts aim to encourage improved performance inrelated fields as court administrators advocate, for example, to make sure "thereare enough treatment beds, treatment slots . . in order to make these courts 273. See, e.g., Dorf & Sabel, supra note 13, at 833 ("Unlike traditional courts of specialized jurisdiction, drug courts are creating the framework for a pervasive reform of the service providers withwhom they collaborate in the very act of coordinating the services provided.").
274. Cf. Nicole Santa Cruz & Ashley Powers, Mental Health in Arizona: A Case Study, L.A. TIMES, Jan. 19, 2011, http://articles.latimes.com/2011/jan/19/nation/la-na-arizona-mental-health-20110120 (ex-plaining how services for mentally ill persons have been reduced by $2 billion across the country,eliminating 4,000 inpatient beds, and depriving numerous patients of desired treatment and medica-tion).
275. See GREENE & MAUER, supra note 3 (examining the fiscal impacts of prison downscaling).
276. WOLF, A NEW WAY, supra note 68, at 6.
277. See Dorf & Sabel, supra note 13, at 839.
DECARCERATION COURTS As specialized criminal court judges and advocates run up against the limits of social service providers to accommodate the need for the relevant services,the effect in many instances may be a politicization of judges and other courtadvocates regarding the structural problems afflicting the demographic servedby the court. Part of the reformist potential of a decarceration model, then, isthat it may lead court participants to galvanize broader support for reallocationof resources to better address these problems. Some mental health court person-nel have begun this process by locating resources for housing subsidies and byserving as advocates for court participants with potential landlords.279 It is important to acknowledge, though, that in some, perhaps even in many, circumstances, a decarceration model may run up against a sense of tragicfutility—and the court and related diversionary programs may be unable toaddress adequately the matters at hand, even with more extensive resources fortreatment and other social service alternatives.280 After all, simply improvingthe employment and life prospects of particular individuals and shifting re-sources to institutions that may support those individuals to become moresocially integrated, is unlikely to do a great deal to shift the structures ofopportunity in blighted urban and rural neighborhoods when, fundamentally, theproblems the courts aim to address are deep-seated, systemic problems.281 Yet,under such circumstances, the limitations of specialized criminal courts mayfacilitate larger-scale legislative reform that support effective decriminalizationof certain offenses, reduced incarceration regarding others, and reinvestment inunder-resourced areas. For instance, the limited capacity of drug courts inCalifornia to address treatment and other needs in that state helped to facilitatelegislative reform along these lines. In 2000, when California voters passedProposition 36, the Substance Abuse and Crime Prevention Act—permittingdrug arrestees to receive probation with drug treatment instead of incarceration—the public was responding in part to criticism of drug courts that they served too 278. WOLF, A NEW WAY, supra note 68, at 10 (quoting Nancy Fishman, Project Director, Council of State Governments' Justice Center).
279. Shoaf, supra note 128, at 992.
280. See Robert Weisberg, Norms and Criminal Law, and the Norms of Criminal Law Scholarship, 93 J. CRIM. L. & CRIMINOLOGY 467, 589–90 (2003) (citing MERCER L. SULLIVAN, "GETTING PAID": YOUTHCRIME AND WORK IN THE INNER CITY 226–50 (1989)).
281. For instance, the relationship between crime and unemployment is complex—there is no simple [K]ey is not the employment of the individual, but the density of consistent employment in theneighborhood. . [I]t is not a singular material factor, because it includes, for example, theefficacy of local job networks, which distinguish blue collar neighborhoods where educationrates are not necessarily high. And of course distant macroeconomic forces probably affectcrime rates, factors like the outsourcing of manufacturing . . [as do] various local attitudesthat include tolerance, [and] exhaustion or resistance in the face of criminal victimization . .
Id. (footnote omitted).
THE GEORGETOWN LAW JOURNAL few drug offenders and involved too much judicial oversight.282 While Califor-nia's drug courts provided treatment to approximately 3,000 individuals annu-ally before 2001, under Proposition 36 approximately 36,000 drug offenderseach year were receiving probation with drug treatment by 2004.283 Further,supervision is delegated from the judge to probation officers and revocation ofprobation is only considered under limited specified conditions; "flash incarcera-tion" (short-term incarceration for technical violations) is not permitted.284 The Utah Drug Offender Reform Act provides another intriguing window on to the systemic shifts set in motion by the relatively limited capacity ofspecialized criminal courts. According to Dan Becker, Utah's State CourtAdministrator: The focus that drug courts have put on treatment gave rise to a lot of intereston the part of the larger criminal justice community in Utah. . All of thecriminal justice agencies got together and worked for several years on craftinglegislation that's called the Drug Offender Reform Act, which provides forscreening and assessment for every single person charged with a felony wherethere's a drug offense involved. . The legislature last year stepped forwardand funded about half of the cost of implementation; they'll fund the otherhalf next year hopefully. . And that's a complete shift in public policy. . Isuspect you could trace that back to the roots of drug courts putting theemphasis on treatment.285 As court personnel struggle against structural barriers, such as a lack of adequate public health and mental health services, lack of affordable housing,and geographically concentrated underemployment, the result may be somemeasure of consciousness-raising and potentially responsive legislative changebut also an acute sense of the impossible situation in which many subjects of thecriminal law find themselves. Part of the reformist potential of a decarcerationmodel is that this experience will lead court participants to work to addressmore comprehensively the structural problems at issue and to disseminate morewidely the truth that criminal courts cannot serve as a cure-all for social 282. See Gardner v. Schwarzenegger, 101 Cal. Rptr. 3d 229, 232 (Cal. Ct. App. 2009) (recounting the history of Proposition 36's passage).
283. DRUG POLICY ALLIANCE, PROPOSITION 36: IMPROVING LIVES, DELIVERING RESULTS 19 (2006).
284. See Gardner, 101 Cal. Rptr. 3d at 238–40 (enjoining enforcement of flash incarceration measures enacted subsequent to the implementation of Proposition 36).
285. WOLF, A NEW WAY, supra note 68, at 12. One interesting feature of the systemic shifts instigated by specialized criminal courts in this respect is that they leave intact criminal prohibitions on certainconduct but facilitate remarkable lenience with regard to that conduct. In other words, on a decarcera-tion model, systemic change tending toward decriminalization need not involve statutory repeals ofcriminal prohibitions. Instead, the existence of diversionary courts and the cognitive and institutionalshifts they work, adjust enforcement priorities and make available social service treatment alternativeswhile leaving intact the expressive symbolic prohibition in the criminal statute. This may be a peculiarinstance of the sort of acoustic separation that Professor Meir Dan-Cohen theorized in his famousarticle on "Decision Rules and Conduct Rules." See Meir Dan-Cohen, Decision Rules and ConductRules: On Acoustic Separation in Criminal Law, 97 HARV. L. REV. 625 (1984).
DECARCERATION COURTS insecurity, social risk, and the underlying social problems the courts routinelyconfront. Moreover, specialized criminal courts operating on a decarcerationmodel begin to expose the complexity of the problems at hand and the unavail-ability of a complete resolution of that complexity. They can help all of us to seethat the problems that have found their way to criminal courts are often ones forwhich there is no ideal solution, even though there are better, more humaneresponses or worse, more brutal carceral means of imperfectly addressing theseproblems.
In these various respects—through reframing understandings of criminally charged conduct, shifting the roles of key systemic players and institutions, andcatalyzing resource reallocation and legislative change—a decarceration modelmay begin to bring about substantial transformative shifts in how criminal lawis administered.
IV. PERILS OF SPECIALIZED CRIMINAL LAW REFORM It remains to consider the perils presented by a specialized criminal courts reform agenda generally—as distinct from the potential risks addressed abovewith regard to the more predominant criminal law reformist models at work inspecialized criminal courts. Specialized criminal courts generally pose a numberof significant and concerning risks: excessive reliance on legal frameworks toaddress complex social concerns; dilution of the expressive retributive ordeterrent force of criminal law; broadly diminished procedural protections;inefficiently proliferating specializations; and legitimation of harshness in con-ventional courts for less sympathetic, racial minority, or otherwise stigmatizeddefendants. This Part will begin to address these risks and the ability of courtsadopting a decarceration model to respond to them.
A. EXCESSIVE LEGALISM? Critics of specialized criminal courts reject the overarching premise that criminal courts can be relied upon to address complex social problems. Profes-sor Jane M. Spinak has argued that court-based approaches will be incapable ofmanaging either the structural problems the specialized criminal courts aim toaddress, such as crippling caseloads in conventional criminal courts, or thedifficult social issues the courts seek to handle, such as addiction and socialdislocation.286 Specialized criminal courts will be unable to manage the courts'structural problems, Spinak contends, because those problems are produced bylegislatures and public policies over which the courts exercise little control.
Simply put, so long as police persist in arresting and prosecutors persist in 286. Jane M. Spinak, Romancing the Court, 46 FAM. CT. REV. 258, 258–59 (2008); see also Levine, supra note 74, at 1131 ("By placing social problems inside the criminal justice framework withoutchanging the fundamental orientation of the officials charged with addressing these problems, weensure that the traditional apparatus of the criminal justice system—conviction, punishment, andsurveillance—will be the only strategies considered by the problem-solvers.").
THE GEORGETOWN LAW JOURNAL prosecuting drug offenders, the volume of drug offenders in the criminal courtswill remain high. Moreover, Spinak maintains, the societal and personal prob-lems the courts seek to address are multifaceted and socially entrenched andwill be difficult, if not impossible, for courts to mitigate, absent broaderstructural shifts. To substantiate these arguments, Spinak explores the history ofthe early family courts, which, like contemporary specialized criminal courts,had problem-oriented ambitions and fell short in resolving the relevant prob-lems, largely because of the complicated socially ingrained character of familydysfunction.287 Spinak concludes that we "need to develop resources beyondthe court" and focus on "more client-oriented solutions" rather than therapeuticor court interventions.288 In Spinak's view, though, any conceptual reorientationwithin the courts toward building resources beyond the court and developingclient-oriented solutions "is not enough to stem the tide of judicial activism thatsituates problem solving in the court itself rather than in the broader structure ofhow people in need are served by our society."289 Professor Mae C. Quinn has advanced a related argument against the legalist orientation of a criminal law reform strategy located in specialized criminalcourts. Quinn's analysis draws on the failure of another earlier Progressive Eraattempt to address a range of social problems through procedurally informalspecialized courts. Quinn provides a fascinating history of how one ProgressiveEra female judge, the Honorable Anna Kross, convened specialized courts toaddress the problems of domestic violence and juvenile delinquency. Butultimately, Judge Kross's experiments were disbanded and derided as failuresbecause they were so expensive that they could never be brought to scale.
Additionally, the "treatment methods" coordinated by the court were unable toaddress the broader social issues at hand, and the outsourcing of treatment tasksresulted in "overreaching and privatization of the judicial system."290 TheProgressive Era endeavor to address social problems through specialized courtswas dismantled, legal protections for accused persons were expanded, andobservers concluded that, while social work intervention might be helpful topersons in distress, this would be best achieved outside the context of criminallaw administration. The troubled juvenile courts are the one continuing institu-tional component of this Progressive Era legacy. Quinn draws from this histori-cal experience to suggest that contemporary criminal court reformers should bemuch more skeptical than they are about the claimed newness of their interven-tions and the capacity of court-coordinated "treatment" to resolve the targeted 287. See Spinak, supra note 286, at 258–60.
288. See id. at 271.
289. See id.
290. Quinn, supra note 14, at 77–78; see also Mae C. Quinn, Revisiting Anna Moscowitz Kross's Critique of New York City's Women's Court: The Continued Problem of Solving the "Problem" ofProstitution with Specialized Criminal Courts, 33 FORDHAM URB. L.J. 665 (2006); Mae C. Quinn,Response, Further (Ms.)Understanding Legal Realism: Rescuing Judge Anna Moscowitz Kross, 88TEX. L. REV. See also 43 (2009).
DECARCERATION COURTS legal systemic or social problems.291 Spinak and Quinn's respective critiques apply with particular force to therapeu- tic, judicial monitoring, and order maintenance models of specialized criminallaw administration. A decarceration model, however, is primarily invested inshifting problems and resources to other extralegal sectors, making it lesssusceptible to the charge of naı¨ve legalism. And on a decarceration model, thediversionary programs are open to all persons, not just those referred throughthe court, so it is not principally the courts themselves that are determining thescope of the populations served or the precise content of the service providers'interventions. To the extent courts remain involved, they aim to ensure somemeasure of accountability for the service providers.
In response to the concern raised by Spinak—that the structural problems at issue emanate from police practices, legislatures, prosecutorial prerogatives, andthe desolation of poor urban and rural neighborhoods and so cannot be resolvedby court innovation—a decarceration model directs attention to reframingunderstandings of crime and punishment in ways that promise to shift policepractices and prosecutorial prerogatives, as explored earlier in Part III. Adecarceration model does not purport to use the court directly to resolve thebroader problems but, in reframing and publicizing a conception of drugdependency, mental illness, and other matters as structural and social chal-lenges, a decarceration model: (a) makes available other ways of conceivingand managing these concerns and (b) actively enlists police and prosecutors inthe courts' work, thereby influencing those agencies' perspectives and conduct.
Empirical documentation of the courts' progress may ultimately provide thebasis for legislative change, as described earlier in Part III. A decarcerationmodel, thus, promises to effect change in policing, prosecution, and to do sothrough legislation rather than assuming that a legalist court-based strategy onits own will effect desired change. Finally, in galvanizing resources for blightedsocial service sectors and neighborhoods, a decarceration model may begin toaddress (invariably only partially) some of the broader structural deficits towhich therapeutic, judicial monitoring, or order maintenance models are lessattuned due to the almost exclusive focus of these approaches on the presumedpathologies of individuals.
A decarceration model also begins to account for Quinn's objections regard- ing the implausibility, due to cost, of bringing specialized criminal courts toscale as well as the threat of judicial overreaching. On a decarceration model,the courts are part of an interim decarceration strategy carried out by reframingparticular conceptions of crime, punishment, and its alternatives; by partiallyreshaping the institutional roles of judges, defense counsel, prosecutors, andcriminal courts; and by shifting resources. A decarceration model need not bebrought to scale to stimulate some significant measure of cognitive reframing, 291. Quinn, supra note 14, at 79–81; see also MICHAEL WILLRICH, CITY OF COURTS: SOCIALIZING JUSTICE IN PROGRESSIVE ERA CHICAGO (2003).
THE GEORGETOWN LAW JOURNAL institutional reinvention, and systemic change, as certain specialized criminalcourts have already begun to do.
The problem of judicial overreaching to which Quinn attends, and which is in part a product of excessive faith in legal fora to facilitate change, is mitigated ona decarceration model due to the minimalist, diversionary approach characteris-tic of the model. The central aspiration of courts adopting a decarceration modelis to divert cases to other social sectors, which fulfill some less formal surveil-lant function and provide social services without enlisting judges in that work.
Although, as with any court-based reform strategy, a decarceration model runssome risk of excessive legalism, the experimental, empirically, and sociologi-cally oriented diversionary approach of a decarceration model mitigates this riskconsiderably.
One might wonder, then, why involve the courts at all if a decarceration model is primarily diversionary? The answer lies in the fact that the matters atissue are currently lodged in criminal courts, and political process defects haveleft the task of addressing these matters largely to judges in criminal courtsthemselves. Judges devised specialized criminal courts as a creative work-around of these political process defects. At this point, the courts hold consider-able advantages as sites for reshaping public understandings of crime andpunishment, for shifting institutional roles, and for reallocating resources toother sectors. Further, as Professor Michael Dorf has argued, specialized crimi-nal courts have "convening power," as well as "disentrenching capacity" to"impose a ‘penalty default' . . so unpalatable to all parties that they have nochoice but to hammer out some solution."292 Also, courts are perceived asrelatively neutral and morally authoritative institutions, lending greater force tothe experimental and empirical work ongoing there. Finally, courts may providesome mechanism through which to render service providers accountable in thetransition to a diversionary regime. Along these lines, then, a decarcerationmodel may navigate some of the excessive legalism potentially associated withspecialized criminal courts and underscored by Spinak and Quinn, while takingadvantage of the institutional authority of the courts to initiate broader transfor-mative criminal law reform.
B. CRIMINAL JUSTICE? A separate question regarding specialized criminal courts is whether they undermine the expressive force of criminal justice. Conveying blame and/ordeterring wrongdoing are arguably the most important features of the criminallaw.293 Plus, tying moral blame to criminal sanctions may play a critical role in 292. Dorf, supra note 206, at 946.
293. See, e.g., Louis Michael Seidman, Points of Intersection: Discontinuities at the Junction of Criminal Law and the Regulatory State, 7 J. CONTEMP. LEGAL ISSUES 97, 160 (1996) (arguing thatcriminal law is "defined by the practice of blaming").
DECARCERATION COURTS realizing the criminal law's deterrent potential.294 Furthermore, Richard C.
Boldt has argued that criminal law "does more than simply express an intention-alist perspective"—a perspective that affirms human agency and moral responsi-bility—but additionally, "it is a vital societal mechanism by which thatperspective is created and maintained, and the causal or objective perspectiveobscured."295 For this reason, Boldt contends it is a mistake to medicalizeaddiction and thereby excuse it; instead, decriminalization is preferable toexcusing categories of conduct which are ill-suited for criminal prosecution, inpart because appropriate excusing factors would undermine the fundamentallyintentionalist perspective of the criminal law.296 From this vantage point, special-ized criminal courts might be understood to weaken the moral condemnatorydimension of criminal justice and, hence, to undercut its deterrent force (insofaras moral prohibition is necessary to make deterrence effective).
In beginning to address these concerns, at first blush it may appear that retributivism is a theory of punishment irreconcilably at odds with the expressmission of decarceration. The crux of a retributive approach is to punishoffenders proportionally to their moral blameworthiness, based on the crimecommitted. Leniency and harshness both violate the principle of proportionality.
Yet, upon closer examination, there may be a retributive defense of a decarceration model after all. A retributive account of a decarceration modelwould proceed on the following premises. First, if retributivist criminal lawadministration is to impart moral blame and assign proportionate punishment, itought to focus on those forms of misconduct for which blame is apt—not onconduct for which victims are absent or where moral agency is seriously inquestion. Courts adopting a decarceration approach focus in large part, thoughnot entirely, on what Professor Sanford Kadish has characterized as "morallyneutral" criminal offenses or on offenders whose moral blameworthiness isotherwise mitigated.297 For these categories of offense and offender, the retribu-tive concern with imparting moral blame through criminal law holds less sway.
Still, in cases involving both morally neutral as well as more morally charged offenses, courts adopting a decarceration approach limit defendants' liberty insignificant ways, which are surely experienced by defendants as constraining,sanctioning, and, in those respects, punitive. For example, a drug addict man-dated by the court to undergo treatment or a person with mental illness 294. See, e.g., Seidman, supra note 123, at 336 ("Our most important collective institution for teaching through blaming is the criminal law.").
295. Richard C. Boldt, The Construction of Responsibility in the Criminal Law, 140 U. PA. L. REV.
2245, 2247 (1992).
296. Id. at 2253; see also Hoffman, supra note 174, at 1477–78 ("[W]e are judges, not social workers or psychiatrists. We administer the criminal law because the criminal law is its own social end.
It is not, or at least ought not to be, a means to other social ends.").
297. See SANFORD H. KADISH, BLAME AND PUNISHMENT: ESSAYS IN THE CRIMINAL LAW 49–53 (1987).
Morally neutral criminal laws include regulatory offenses that do not involve harmful wrongdoing toothers as well as some offenses requiring only vicarious liability or imposing strict liability. See Luna,supra note 28, at 722–23.
THE GEORGETOWN LAW JOURNAL mandated to comply with a mental health regimen, both have their libertyundermined. In the throes of addiction or a psychotic manic episode, mostpersons would prefer to use drugs or experience their mania. Specializedcriminal courts punish those persons by limiting their liberty and mandating byforce of law a socially preferred course of action. In other words, social serviceintervention and punishment are not necessarily diametrically opposed. Suchintervention may be experienced as punitive. And in fact, such intervention "canactually provide the ideological basis whereby the state exercises greater controlover the individual than is typical of a normal criminal court."298 In this regard,from a retributive standpoint, specialized criminal courts may enable moremeaningful punitiveness than conventional criminal courts. According to formerKansas City drug court prosecutor Claire McCaskill, the diversionary programsrequired of participants in her jurisdiction are "tougher than the alternatives."299 In contrast, conventional jail, prison, and probationary sentencing often fail on a retributive theory, either because of disproportionate harshness when aninmate will be physically harmed and subject to brutal conditions, or whenprison, jail, and probation function as part of the anticipated life course—not asespecially stigmatizing punishment—for certain demographics of criminallyconvicted persons.300 In this regard, diversionary sentencing may provide moremeaningful, proportionate, and significantly liberty-constraining punishmentfrom a retributive standpoint than conventional sentencing.301 Additionally,because a decarceration model maintains no commitment to a purely therapeuticneo-rehabilitative or purely deterrent judicial monitoring approach, there isnothing to prevent specialized criminal court teams from incorporating propor-tional sentencing constraints in devising diversionary sentences.
A decarceration model need not fundamentally undermine an agency-focused intentionalist perspective of the sort, Boldt addresses, but merely reorganizessociety's response to particular defendants and offenses, preferring mandatorysocial institutional integration to jail or prison sentencing. Criminal prohibitionsremain intact until they are legislatively altered, so the expressive moral condem-nation function of criminal law remains, in that regard, unchanged. The sen-tence assigned in response merely shifts from prison, jail, and conventionalcriminal supervision to other sectors.
This shift occurs on a decarceration model in part in the interests of a larger concern for justice—for maintaining the legitimacy of a legal order that isdeeply compromised by overcriminalization and overincarceration. Even on aKantian retributive theory, it may be that some measure of lenience is warranted 298. NOLAN, supra note 10, at 52.
299. See id. at 53–54.
300. See Pettit & Western, supra note 35.
301. Cf. Freed Inmate Tries To Break Back into Prison, ASSOCIATED PRESS, Sept. 6, 2001, http:// www.seattlepi.com/local/article/Freed-inmate-tries-to-break-back-into-prison-1065029.php; Kate Mather,Parolee Arrested Trying To Break Back into Sacramento Prison, L.A. TIMES, Aug. 12, 2011, http://latimesblogs.latimes.com/lanow/2011/08/parolee-break-back-into-prison.html.
DECARCERATION COURTS to "preserve the legal order on which justice depends."302 Though much morecould surely be said, for now that concludes the retributive defense of adecarceration model.
From the perspective of deterrence, a decarceration approach dissuades for the same reasons that it may be experienced as punishment from a retributivestandpoint: diversionary sentences still substantially constrain defendants' lib-erty. A potential offender aware that apprehension may lead to a court-ordereddiversion program, will be inclined to desist from being apprehended forconduct that will lead to a diversionary sentence, something that individualwould prefer to avoid. Critically, on a decarceration model, referral services areopen to all comers, not just those referred through diversionary courts, so thereis no incentive to offend in order to obtain services should those services bedesired. Further, for most eligible defendants—mentally ill persons, drug ad-dicts, veterans suffering severe post-traumatic stress—their socially disruptiveconduct is unlikely to be carried out following reflective cost–benefit analysis,so the deterrent potential of any criminal law administrative arrangement isquestionable.303 It must, of course, be acknowledged that a diversionary sen-tence will not deter those individuals who wish both to commit an offensesubject to the jurisdiction of a specialized criminal court and who wish to enterdiversionary programming. But as noted above in reference to retributiveconcerns, this same problem arises with respect to conventional jail, prison, andprobationary sentencing: for many criminal defendants, criminal law involve-ment has become an anticipated part of the life course, a life stage throughwhich certain demographics of defendants expect to pass, and, in this regard, adiversionary approach may not be appreciably less stigmatizing (and lessdeterrent) than conventional sentencing.
One reason a decarceration model is preferable to a more jurisprudentially specified model of specialized criminal law administration, such as therapeuticjurisprudence, is because this jurisprudentially underspecified form permits thecourts to engage multiple complex meaning imparting functions involved incriminal law administration. In certain criminal cases, the ideal role of the courtmay be simultaneously to condemn a given offense and the possibly reprehen-sible motivations behind it, to reaffirm the worth of the victim, to aim to craft asanction that will deter the offender and others from such conduct in the future,but also to act mercifully. This is a complex undertaking, to be sure, and onethat cannot be easily captured under a single criminal law jurisprudential theory,whether a therapeutic jurisprudential approach or an instrumentally deterrent 302. See Binder, supra note 112, at 356–58 (exploring conditions under which Kantian theory of punishment would permit justice to be traded for justice and citing IMMANUEL KANT, METAPHYSICALELEMENTS OF JUSTICE 138 (John Ladd trans., Hackett Pub. Co. 2d ed. 1999) (1796)).
303. To the extent that skeptics inclined to a deterrent theory of punishment may worry that these courts would imperil public safety, there is considerable evidence that "measures to reduce prisonpopulation may actually improve on public safety because they address the problems that broughtpeople to jail." Brown v. Plata, 131 S. Ct. 1910, 1942 (2011) (internal quotation marks omitted).
THE GEORGETOWN LAW JOURNAL model. As Dan M. Kahan and Martha C. Nussbaum have proposed: "A disposi-tion that purports to answer only a single, abstract question—did the defen-dant's background ‘cause' his crime? or even does the defendant ‘deserve' to bepunished?—will never be rich enough to convey all of these meanings."304 Inthis respect, courts adopting a decarceration approach have overdeterminedmeanings, rendering them potentially consistent with a range of differingideological and legal precommitments. Retributivists may favor diversionarycourts because they enable a tough and intrusive form of criminal law administra-tion that is proportional to wrongdoing and lenient where in the interests ofjustice, having the potential to both deter and prevent future offending, andothers may be drawn to diversionary courts for their rehabilitative and humanitar-ian potential. Regardless of one's criminal law theoretical commitments, adecarceration model promises to reduce criminal law administrative costs,increase efficacy, and reduce reliance on incarceration.
For the time being, a decarceration approach is best suited to misconduct for which there is some considerable collective interest—among legal actors andthe public—in experimental alternative social response. But perhaps over time agrowing class of offenses and offenders will come to seem suitable candidatesfor decarceration. There are surely some crimes of violence that will not beamenable to decarceration processing at all, though it is not entirely clear whatthose offenses are in the abstract. The conduct of the person who murders, whorapes, who robs by violent means may not be subject to redirection throughcourt or other intervention, and the only politically and socially viable responsemay be moral condemnation and incapacitation. As sociologist Jack Katzexplains in his studies in Seductions of Crime, certain violent acts may "emergefrom a dizziness in which conformity is the greatest spiritual challenge anddeviance promises the peace of transcendent significance."305 But for otherswho have killed, their deviant conduct may never again be repeated—it mayhave occurred in a drug-induced haze that, following recovery, would no longerthreaten others and for which moral culpability is lacking. The experimental,unfinished character of a decarceration model allows this question be resolvedincrementally over time.306 304. Dan M. Kahan & Martha C. Nussbaum, Two Conceptions of Emotion in Criminal Law, 96 COLUM. L. REV. 269, 370–71 (1996).
305. JACK KATZ, SEDUCTIONS OF CRIME: MORAL AND SENSUAL ATTRACTIONS IN DOING EVIL 296 (1988).
306. Because, even if criminal law scholar Paul H. Robinson and his collaborators are right and there is a "core of agreement" about the relative wrongness of the most egregious types of criminaloffenses, this does not in the least entail that we know what to do to best respond to the offenses inquestion or what to do to address the associated social problems. See Paul H. Robinson & RobertKurzban, Concordance and Conflict in Intuitions of Justice, 91 MINN. L. REV. 1829 (2007); see alsoDonald Braman, Dan M. Kahan & David A. Hoffman, A Core of Agreement, 77 U. CHI. L. REV. 1655(2010).
DECARCERATION COURTS C. REDUCED PROCEDURAL PROTECTIONS? Specialized criminal courts frequently adopt a collaborative approach that entails, at certain stages, reduced adversarialism and reduced procedural protec-tions—an approach that critics charge raises numerous due process concerns.307Criminal defense attorneys object to these relaxed procedures on the groundsthat reduced procedural protections lead to outcomes that are bad for theirclients and that more generally are corrosive of the legitimacy and integrity ofcriminal law.308 This line of objection continues that, when defense counselworks as part of a diversionary sentencing "team," they may be less thanvigilant in seeking to have illegally obtained evidence excluded and less willingto challenge the legal or factual bases of the government's charges.309 Defen-dants' interactions with social service providers outside the presence of counselalso may entail due process violations as any incriminating statements mayaffect the defendant's revocation sentence.310 In certain drug courts, for in-stance, judges may rely on progress reports from substance abuse programmersin determining whether to apply sanctions to court participants; domestic vio-lence courts similarly rely on reports from anger management programs toassess compliance.311 This information is obtained in a "treatment" context andis not subject to any measures that would ensure procedural fairness or regular-ity.312 307. See, e.g., Lanni, supra note 68, at 383–87.
308. See, e.g., NAT'L ASS'N OF CRIMINAL DEF. LAWYERS, supra note 14, at 10–13.
309. Lanni, supra note 68, at 385; see also BERMAN & FEINBLATT, supra note 7, at 86 ("Defenders, who are accustomed to battling prosecutors to get the best deal for their clients, are often asked to workalongside them as part of a collaborative team. These cooperative efforts often start on the ground floorwith traditional adversaries working together to design guidelines, eligibility criteria, and sanctioningschemes. When a drug-court judge hands down a three-day jail sentence because an addict has failed toattend his treatment program, defenders are often surprisingly silent, because they—and their clients—have already accepted the idea of intermediate jail sanctions as part of the treatment sentence.").
Another critical function of criminal courts is to police the police, and if specialized criminal courtsrequire an expeditious guilty plea, they make unavailable suppression motions or other motions practicethat may incentivize good police behavior. See Steven Zeidman, Policing the Police: The Role of theCourts and the Prosecution, 32 FORDHAM URB. L.J. 315 (2005).
310. Lanni, supra note 68, at 385.
311. BERMAN & FEINBLATT, supra note 7, at 85.
312. Nevertheless, to the extent a proceduralist objection focuses on reduced adversarialism within specialized criminal courts, it is worth bearing in mind that a pure form of adversarial criminal lawadministration is incorrectly assumed to obtain in conventional U.S. criminal courts and, insofar asadversarial procedures are present, these procedures' desirability relative to various alternatives remainsuncertain. See, e.g., Abraham S. Goldstein, Reflections on Two Models: Inquisitorial Themes inAmerican Criminal Procedure, 26 STAN. L. REV. 1009, 1019 (1974) ("European criminal procedures areno more purely inquisitorial than ours are purely [adversarial]."); see also MARVIN E. FRANKEL, PARTISANJUSTICE (1980) (critically analyzing adversarial criminal justice administration and proposing modifica-tions to address significant problems); LLOYD L. WEINREB, DENIAL OF JUSTICE: CRIMINAL PROCESS IN THEUNITED STATES (1977) (critiquing U.S. adversarial criminal processes and examining preferable alterna-tives); Mirjan Damasˇka, Evidentiary Barriers to Conviction and Two Models of Criminal Procedure: AComparative Study, 121 U. PA. L. REV. 506 (1973) (critically examining adversarial criminal proce-dures relative to continental alternatives); John H. Langbein & Lloyd L. Weinreb, Continental Criminal THE GEORGETOWN LAW JOURNAL Unlike on a therapeutic jurisprudence, judicial monitoring, or order mainte- nance model, on a decarceration approach there is considerable room to incorpo-rate robust procedural protections, thereby responding to most proceduralobjections leveled generally against specialized criminal courts, even if thereremain inevitably some procedural rights trade-offs. Because the legal processitself is not understood to have a therapeutic or other nonconventional orienta-tion on a decarceration model, full due process protections should and havebeen applied at the stage of revocation.313 To accommodate concerns regardingjudicial neutrality, courts adopting a decarceration model could readily assigntwo separate judges, one to handle supervision and a separate judge to handlerevocation.314 The due process problems posed by labeling defendants in judi-cial monitoring courts "sex offenders" prior to adjudication are so obvious as torequire little explanation—on a decarceration, model preadjudication judicialmonitoring need not occur. An additional substantial ground for proceduralobjections is the often substantial disparity in specialized criminal courts be-tween the relatively light sentence a defendant would have received in theconventional court and the disproportionately harsh jail or prison sentence adefendant will receive if he or she fails in the diversionary program. Because adecarceration model's primary aim is to reduce reliance on incarceration consis-tent with maintaining public safety, such courts do not seek to obtain leverageby imposing disproportionately harsh revocation sentences; in fact, empiricalanalyses suggest that the severity of sanctions in drug courts does not appear toreduce the subsequent number of crimes committed or days of drug use.315 Beyond these more obvious modifications on a decarceration model to ac- count for procedural justice concerns, diversionary courts may operate in accordwith any of several different procedural configurations. Courts may be pretrial/pre-plea, post-plea/presentencing, or post-conviction sentencing alternatives.
For example, some drug court programs provide for placement in a drug courtfollowing adjudication but, if the terms of the program are violated, probation isrevoked and the court will sentence the defendant anew or based on a predeter-mined revocation sentence.316 In contrast, in other specialized criminal courts,failure to comply merely leads to the reinstatement of criminal proceedings, not Procedure: "Myth" and Reality, 87 YALE L.J. 1549 (1978) (analyzing preferable features of inquisito-rial as compared to adversarial criminal procedure models).
313. See, e.g., State v. Rogers, 170 P.3d 881, 886 (Idaho 2007) (holding that drug-court-program participant was entitled to due process protections during proceedings to terminate his participation inthe program and incarcerate him).
314. This solution is not as readily available on a therapeutic jurisprudence or judicial monitoring model because the theoretical bases of those models turn on the continuing relationship between thedefendant/participant and the judge, whether that continued relationship emphasizes a presumedtherapeutic connection or deterrent influence. A more general proceduralist concern relates to thepotential role shift for the judge in specialized criminal courts, but on a decarceration model that roleshift is less pronounced than on a therapeutic jurisprudence or judicial monitoring model.
315. See ROSSMAN ET AL., supra note 12, at 224.
316. See, e.g., 730 ILL. COMP. STAT. ANN. 166/35(a)(4) (LexisNexis 2007 & Supp. 2011); see also State v. Bellville, No. 5-476/04-1634, 2005 Iowa App. LEXIS 963, at *2–7 (Iowa Ct. App. Aug. 31, DECARCERATION COURTS to a previously bargained conviction or sentence.317 The decision to take a plea is a serious one and making an informed and rational choice about pleading guilty is particularly difficult when the alterna-tive is a possibly much lengthier prison sentence and when the defendant isdrug-addicted or suffering from mental illness.318 One way to attempt tocircumvent the procedural concerns that arise under such circumstances is tohave the diversionary alternative process occur prior to a plea being entered. Onthis approach, a defendant would elect whether to opt in to the specializedcriminal court and upon successful completion of the diversionary program anycharges would be dropped. Egregious misconduct while in the program wouldresult in referral to the conventional criminal process for the prior criminalconduct, but evidence from the diversionary period obtained through treatmentor other social service intervention could be excluded. The defendant wouldthen choose whether to plead guilty at the outset, pursue any motions practice,or proceed to trial.
The due process concerns on this approach relate principally to the fact that the diversionary alternative, to the extent it is intrusive and limiting of thedefendant's liberty, is mandated prior to a finding of guilt. But the defendant'sparticipation is optional, no more constrained than any choice made in light ofthe background criminal law regime, and the specialized court participant mayat any point opt out and return to the conventional process.319 Still, the choice of the participant does not eliminate concerns about coercion because any choice takes place against the coercive pressures of the criminallaw regime and the broader social and political setting in which the defendantfinds himself or herself. And if specialized criminal courts increase pressures toarrest or for arrestees to enter diversion programs, they will have constrainedindividuals' options in a significant sense rather than having expanded them.
But the coercion at work in determining whether to enter the specializedcriminal court is no more than the coercion in play at any other critical phase ofproceedings in which a defendant decides to plead guilty or go to trial, and thepotential benefits to the participant are considerable.
The other available approach is to employ the diversionary court as a post-conviction sentencing alternative, with egregious offending while in theprogram punished by an alternative pre-agreed upon sentence. This avoids the 2005) (upholding sentence of consecutive jail terms following revocation of drug court program basedon prior plea agreement).
317. See, e.g., GA. CODE ANN. § 16-13-2(a) (2011). An alternative approach, of which there is a pilot ongoing in Seattle, takes specialized courts out of the picture entirely and relies purely on police todivert drug-involved offenders to treatment providers prior to any criminal charge. See THE DEFENDERASSOCIATION, LAW ENFORCEMENT ASSISTED DIVERSION (LEAD) EVALUATION PANEL (2011) (on file withauthor).
318. See Brady v. United States, 397 U.S. 742, 748 (1970) ("[A] guilty plea is a grave and solemn act to be accepted only with care and discernment . . ").
319. Specialized criminal courts leave the parallel conventional process undisturbed, with the full panoply of procedural protections in principle available to defendants there.
THE GEORGETOWN LAW JOURNAL due process problems associated with court mandates prior to a finding of guiltbut increases the risk of coercive, less-than-voluntary pleas.
As far as the post-conviction configuration is concerned, due process and coercion concerns may be mitigated if there is not too harsh a pre-agreed uponor subsequently determined revocation sentence—that is, if the revocationsentence is standardized to what the defendant would have received had he orshe not opted into the specialized court. The procedural concerns could befurther mitigated on a post-conviction model if both those convicted followingtrial and those who pled guilty were eligible for alternative sentencing. Thislatter, post-conviction approach would attend to the procedural rights of defen-dants and would likely reduce incarceration and associated costs. Expanding theability of defendants to remain out of prison protects their interests in avoidingcarceral sentencing and their due process rights so long as defendants are stillable to challenge any illegally obtained evidence at the outset of the case, electto go to trial, and not be subject to a disproportionately harsh sentence uponrevocation.320 In sum, the trade-off is between a pretrial, pre-plea model that potentially avoids criminal proceedings altogether and more closely renders participation achoice, and a post-conviction model that avoids certain due process problemsby making the specialized criminal court program effectively a part of thedefendant's sentence. But unless the post-conviction approach allows defen-dants to enter following trial, it applies substantial pressure to plead guilty toretain the option to avoid jail or prison, even under circumstances where thedefendant may contest guilt. The advantage of the experimental quality of adecarceration model is that jurisdictions may test the various procedural configu-rations and determine which best serves the range of interests at stake and raisesfewer due process and other problems—not merely in theory but in terms ofparticipants' experiences on the ground.321 Finally, it is also critical to consider whether procedural protections are the panacea their proponents assume for fairness in conventional criminal law 320. See FAROLE & CISSNER, supra note 132, at 5–7 (exploring drug court participants' reasons for and aspirations in opting into drug court).
321. A decarceration model takes empiricism and experimentalism seriously, seeking to engage in a process of internal reform and improvement. This process is more likely to meaningfully occur on adecarceration model than on a therapeutic jurisprudence, judicial monitoring, or order maintenancemodel because there is not otherwise any commitment to a particular therapeutic, neo-rehabilitative,deterrence-based, or order maintenance ideology. See Dorf & Sabel, supra note 13, at 882–83. Dorf andSabel overestimate the rigors of self-monitoring and self-reporting in drug courts and specializedcriminal courts generally and neglect the strong incentives for entities to set limited but readilyachievable goals so as to be able to claim success, regardless of actual outcomes. Further, self-monitoring and self-reporting may be less useful where the ultimate goal or measure at stake is indispute, as I have suggested it often is in specialized criminal courts. But see id. A decarceration modelis primarily concerned with reducing incarceration consistent with maintaining public safety and socircumvents some of these complications.
DECARCERATION COURTS administration.322 Because there is such great pressure on the conventionalcourts due to high case volumes, the vast majority of cases are handled throughguilty pleas. Often public defenders have little time to investigate a case beforea client is advised to plead guilty. But if greater numbers of cases were removedfrom the conventional criminal courts to specialized criminal courts and othersectors, fewer cases would remain in conventional courts, provided that special-ized courts manage to avoid a net-widening enforcement effect. This wouldpermit more robust procedural protections and investigations in the conven-tional criminal courts. Oddly then, it is plausible that the removal of cases to aless adversarial specialized criminal context may enhance procedural justiceoverall, improving procedural safeguards in conventional courts rather than theoutcome feared by proceduralists.
D. SPECIALIZATION FOR GOOD OR FOR ILL? A further peril of a specialized criminal courts law reform strategy is that it may require a profusion of specialized courts to address the myriad problemsrequiring reform. Convening a separate court for each separate area in whichsubstantive criminal law reform is desired would be enormously costly.323Additionally, reliance on criminal court specialization might well threaten toundermine rule of law values centered on a model of judges as neutral general-ists.324 Although these are legitimate objections to certain forms of criminal court specialization, a decarceration model is less likely to entail these troublingfeatures of specialization for two primary reasons. First, a decarceration modelis an interim strategy for criminal law reform, focused specifically on reducingreliance on incarceration by setting in motion broader reform processes asdiscussed previously in section II.D and Part III. Diversionary courts need notaspire to become a permanent criminal law administrative fixture. Thus, adiversionary decarceration model poses a less significant threat of proliferatingcourts endlessly in response to every criminal law problem requiring reform. Asa consequence, this approach stands to intrude less upon the predominant normof generalist adjudication. Second, courts adopting a decarceration approachneed not be particularly substantively specialized. A decarceration model could 322. See, e.g., Laura Sullivan, Inmates Who Can't Make Bail Face Stark Options, NAT'L PUB. RADIO (Jan. 22, 2010), http://www.npr.org/templates/story/story.php?storyId⫽122725819&ft⫽1&3⫽3 (report-ing that more than 500,000 inmates in the United States each year face a choice between pleadingguilty for crimes for which they claim innocence or remaining incarcerated until a trial date weeks ormonths later to contest charges).
323. Roscoe Pound famously opposed court specialization on similar grounds because it would tend to result in duplication of function, waste, and inefficiency. See, e.g., R. Stanley Lowe, Unified Courtsin America: The Legacy of Roscoe Pound, 56 JUDICATURE 316 (1973).
324. Although specialization is a feature of modern society, courts and judges have generally constituted an exception to this trend. See BAUM, supra note 6, at xi–xii. There are, however, numerousspecialized courts outside the criminal context, such as the Tax Court and the Court of Appeals for theArmed Forces.
THE GEORGETOWN LAW JOURNAL incorporate within one court jurisdiction over a range of different matters forwhich non-carceral sentencing is preferred. This too stands to reduce the risk ofendlessly proliferating specialized criminal courts and positions specializedcriminal court judges in a role more akin to the prototypical generalist judge.325 E. LEGITIMATION COSTS? Finally, specialized criminal courts threaten to impose significant legitimation costs. First, specialized criminal courts may legitimate increased harshness inconventional criminal courts once more sympathetic criminal defendants havebeen removed. With the removal of presumably more vulnerable or less blame-worthy individuals from conventional criminal courts and prisons, one mightwell envision an increase in punitive attitudes toward those remaining. This isso even though it may be profoundly unfair to allow some criminal law breakersaccess to specialized criminal courts because we perceive them to be moreworthy of our understanding, when others are really no more blameworthy.326 A related risk is that in removing more purportedly sympathetic defendants from conventional criminal courts, racial and class disproportion will increase,with more defendants of color and materially poor defendants remaining in theconventional courts.327 Indeed, that is precisely what occurred under deinstitu-tionalization in the 1960s when the racialization of mental hospitals in-creased.328 And preliminary results from mental health courts suggest this trendis a problem in that context too, as a study of case processing in seven mentalhealth courts found overrepresentation at the point of referral of older individu-als, white persons, and women as compared to their proportion in the criminaljustice system generally.329 Though empirical monitoring enables identificationof the point at which racial disparities emerge, identification of the locus of theproblem does not by any stretch guarantee its elimination. The convergence ofinterest between wealthier white defendants with mental health or addictionproblems and similarly addicted or mentally ill poorer defendants of color—aninterest convergence that likely contributed in large measure to the emergenceand widespread popularity of specialized criminal courts—will be able tosustain a legitimate alternative sentencing regime only if all defendants, irrespec- 325. All this is not to say that a decarceration approach will necessarily reduce costs. To meaning- fully address the complex social problems driving overincarceration will be resource-intensive, andspecialized courts often rely on an array of "services that simply don't exist in most criminal courts."BERMAN & FEINBLATT, supra note 7, at 64.
326. See JUSTICE POLICY INST., supra note 73, at 23. As Edward P. Mulvey, delivering the Presidential Address at an American Psychological Association convention explained: "[T]he courts are beingestablished for groups of individuals who are seen as ‘deserving' of better processing and moreindividualized attention from the justice system." Id. (quoting Edward P. Mulvey, Presidential Addressto the American Psychology–Law Society, Division 41 of the American Psychological Association,Mar. 20, 2010).
327. See Robert V. Wolf, Race, Bias, and Problem-Solving Courts, 21 NAT'L BLACK L.J. 27, 28–30 328. See Harcourt, supra note 209, at 4, 29–31.
329. Steadman et al., supra note 80, at 215.
DECARCERATION COURTS tive of socioeconomic status or race, have equal access to favorable diversion-ary sentences.330 Separately, there is the problem of potentially legitimating the management of particular social challenges through criminal law by vesting more authority inspecialized criminal courts to address social problems.331 These are all genuineand profoundly concerning problems associated with a specialized criminalcourts law reform strategy.
There are several ways in which a decarceration model may attempt to address these issues. At the outset, awareness of and careful attention to theassociated risks may help to minimize their occurrence and impact in the eventthe problems identified come to pass. For example, ongoing empirical monitor-ing may track any racial or class disproportion as it arises and direct attention tothe areas where the problem is greatest so that it might be addressed, explicitlyfocusing institutional actors on confronting racial disparities in referral, termina-tion, or wherever else they are occurring. Ultimately, many of the pathologies inU.S. criminal law administration have to do with race and with racialization ofthe category of the criminal defendant or incarcerated person, so meaningfulcriminal law reform will almost certainly require grappling intensively with theracial dimensions of criminal law enforcement.332 Insofar as a decarceration model seeks to unwind harsh punishment and incarceration generally, this approach may serve more broadly to call intoquestion exceedingly punitive criminal law frameworks, both for those defen-dants in specialized courts and those in conventional courts. Movement ofjudges between conventional and specialized criminal courts may also serve tolimit stratification of the two systems.333 Admittedly, however, these cautionaryefforts may prove inadequate.
Even so, in taking stock of these legitimation costs, as well as the other problems considered in this Part, it is crucial to compare the problems presentedon a decarceration model with (a) the limits of the other competing reformistmodels of specialized criminal law administration considered earlier in thisArticle, and then to compare each of these to (b) the status quo in conventionalcriminal case processing in the United States. That is, the limits of a decarcera-tion model or other specialized criminal law reformist model should be consid-ered as compared, not just to the objector's preferred utopian alternative, but 330. See Justin Driver, Rethinking the Interest-Convergence Thesis, 105 NW. U. L. REV. 149 (2011) (critically discussing the interest-convergence thesis, which holds that disadvantaged groups receivefavorable judicial treatment to the extent their interests coincide with the interests of majority groupelites).
331. Chrysanthi S. Leon, Should Courts Solve Problems? Connecting Theory and Practice, CRIM. L.
BULL., Winter 2007, at art. 2.
332. See, e.g., ALEXANDER, supra note 35.
333. Of course, it is possible that judges sitting in the specialized court would adapt a different judicial perspective than when sitting in the conventional court.
THE GEORGETOWN LAW JOURNAL relative to the status quo in U.S. criminal law administration.334 Procedural protections may be found wanting on a decarceration model, but are these protections more meaningfully enforced in the standard criminalcourts where well over ninety percent of criminal cases end in a plea, followingproceedings, the character of which Malcolm Feeley powerfully captured in hisbook The Process is the Punishment?335 Is the liberty-infringing character ofsurveillance on a decarceration model more onerous than in prisons and jails,where many more specialized court participants might well be were the courtsto be disbanded? Retributivists must consider too the relative achievement ofretributive goals in the specialized criminal court setting as compared to thestandard criminal process, which Feeley described decades ago as follows, andwhich remains in these respects unimproved: [T]rials are rare events, and even protracted plea bargaining is an exception.
Jammed every morning with a new mass of arrestees . . [t]hese courts arechaotic and confusing; officials communicate in a verbal short-hand whollyunintelligible to the accused and accuser alike, and they seem to makearbitrary decisions, sending one person to jail and freeing the next. But for themost part they are lenient; they sentence few people to jail and impose fewlarge fines.
. .
. . Judges, bored by their jobs, become callous toward defendants who are sodifferent from themselves. Prosecutors, dulled by their repetitive work . .
appear to be vindictive. Defense attorneys, depressed by feelings that theirefforts are not appreciated, can easily begin to treat their clients carelessly.336 And this picture is not unique to the second half of the twentieth century when Feeley wrote his study of the New Haven criminal courts. Decades earlier,Roscoe Pound decried a similar set of ills, which persist after what is nowapproaching a century of efforts to improve conventional criminal law adminis-tration: The bad physical surroundings, the confusion, the want of decorum, theundignified offhand disposition of cases at high speed, the frequent suggestionof something working behind the scenes . . create in the minds of observers ageneral suspicion of the whole process of law enforcement . . 337 More recently, in his study of the Chicago criminal courts, investigative 334. See Bratton Blom et al., supra note 13, at 42 ("All the criticisms of problem-solving courts— that they violate due process rights, that they fail to rehabilitate, or that they represent a form ofundemocratic reform—apply to the reality of the court system today.").
335. See generally MALCOLM M. FEELEY, THE PROCESS IS THE PUNISHMENT: HANDLING CASES IN A LOWER CRIMINAL COURT (1979).
336. See id. at 3–4.
337. ROSCOE POUND, CRIMINAL JUSTICE IN AMERICA 190–91 (Da Capo Press 1972) (1930).
DECARCERATION COURTS journalist Steve Bogira sounded strikingly similar notes: Every day, Chicago police wagons swing onto the grounds of the CookCounty Criminal Courthouse and deposit their cargo at a rear door.
The prisoners being unloaded . . are here for the usual reasons. . They tried to buy heroin from an undercover cop. They pocketed a fifth of booze ata grocery and failed to outrun the security guard.
. .
. . The courtroom staff works . . reflexively, not reflectively. The workershave no time to give much thought to any but the most extraordinary case, orto examine what they are doing.
. .
. . [J]ustice miscarries every day, by doing precisely what we ask it to.338 The bottom line is that the status quo to which a decarceration model should be compared, absent a viable alternative reform proposal, is a status quo that isdeeply inadequate whether one is concerned about procedural justice, liberty,racial disproportionality, or retributive punishment. Because these challengesare not unique to specialized criminal courts but rather reflect problems associ-ated with conventional criminal law administration, it is no answer to simplyjettison specialized criminal courts and revert to conventional criminal lawframeworks.
Still, given the myriad perils associated with the competing models of specialized criminal courts elaborated in Part I, the question invariably comes tomind: are the potential benefits of a decarceration model worth the risksidentified in specialized criminal courts in the preceding pages? This Article'sshort answer is yes. Yes, that is, if the courts are able to employ the threestrategies elaborated here and in which some specialized criminal courts areactively engaged: reframing social understandings of crime, punishment, and itsalternatives; institutionally reshaping the courts and associated agencies them-selves; and effecting systemic change, shifting a wide range of social concernsto other sectors better equipped to address the problems at hand.
In this moment of increased openness to thoroughgoing criminal law reform, after decades of escalating criminal sentences, thousands of specialized criminalcourts have emerged across the country and around the globe. These courts havebecome the location of a contest between competing criminal law models.
Certain models at work in specialized criminal courts are configured in such away that threatens to produce a series of unintended and undesirable conse-quences—increased and unnecessary criminal supervision, diminished proce- 338. STEVE BOGIRA, COURTROOM 302: A YEAR BEHIND THE SCENES IN AN AMERICAN CRIMINAL COURT- HOUSE 3, 21–22 (2005).
THE GEORGETOWN LAW JOURNAL dural safeguards, and potentially even increased incarceration. But a lesspredominant criminal law reformist model—a decarceration model—may pro-vide a way of developing different approaches to certain of the social problemscurrently managed through criminal law.
The greatest promise of a decarceration model—if it succeeds at engendering a certain degree of cognitive reframing, institutional reinvention, and systemicchange—is to remove particular categories of offenses and offenders fromconventional criminal courts to be addressed both more effectively and morehumanely elsewhere. Primary candidates for such removal through existingspecialized criminal courts include drug offenders, mentally ill persons, andindividuals suffering the post-traumatic stress of war. Removal of these mattersto other sectors would reduce volume pressures on conventional criminal courtsso that they might more meaningfully and fairly address the relatively few casesof serious violent and property crime, for which alternative processes seeminappropriate or would be exceedingly unpopular. These more serious criminalmatters may not be handled best in the standard criminal process either, but wehave yet to identify a better approach. In due course, if specialized criminalcourts set in motion some measure of systemic change in criminal law adminis-tration, they may both focus and improve responses in cases of serious crimeand simultaneously improve community economic development, accessiblepublic health services, employment, and more generally, human well-being. It isalso possible that specialized criminal courts will achieve none of these things—that their perils rather than their possibilities will be their legacy—but, given thegrave inadequacies and injustices of the status quo in U.S. criminal law adminis-tration, these courts are well worth trying.

Source: http://georgetownlawjournal.org/files/2012/06/McLeod.pdf