PROBLEM SOLVING AND THE AMERICAN BENCH: A NATIONAL SURVEY OF TRIAL COURT JUDGES*

Justice System Journal, 2009 by Farole, Donald J

This article presents the results of a nationwide survey of more than 1,000 trial court judges concerning the potential to apply specialized "problem-solving court" practices more broadly in conventional court settings. Specifically, we examine judges' practices and perceptions related to problem solving in the courts. The survey results demonstrate broad support for problem-solving methods among trial court judges throughout the country-the vast majority holds attitudes consistent with key principles of problem-solving justice and expresses a willingness to employ problem-solving methods in various cases and court settings. Judges also identified a number of potential obstacles to the more widespread use of problem-solving methods. The survey results have implications for how judicial training and education efforts might proceed.

In recent years, individual courts in jurisdictions across the country have begun to redefine their role in the administration of justice, moving beyond the neutral resolution of legal disputes to intervention in the individual and social problems that underlie them. They have done so primarily through the vehicle of specialized courts dedicated to discrete problems such as addiction, domestic violence, and mental illness - issues that, unresolved by traditional adjudication and punishment, will return litigants to court time and again. While widely known for their "problem-solving" focus, these specialized courts share a number of other unique elements, including enhanced information (staff training on complex issues like domestic violence and drug addition, combined with better information about litigants, victims, and the community context of crime); community engagement; a collaborative approach to decision making; individualized justice (using risk- and needs-assessment instruments to link offenders to community-based services, where appropriate); accountability (compliance monitoring, often through ongoing judicial supervision) ; and a focus on outcomes through the active and ongoing collection and analysis of data (Wolf, 2007).

There is now a growing body of research to indicate that drug courts and perhaps other "problem-solving courts" are indeed successful in improving outcomes for defendants and communities. In particular, adult drug courts have been demonstrated to significantly reduce recidivism among substance -abusing defendants.1 Yet the limited jurisdiction and eligibility restrictions of these specialized courts prevent them from reaching more than a small percentage of the defendants and litigants who might benefit from them. Thus, innovators in the field have begun to explore how to institutionalize and expand problem-solving innovations to reach a greater number and variety of defendants, litigants, and cases - whether through the proliferation of specialized courts or through the application of their core principles and practices in conventional court settings.

A 2000 resolution of the Conference of Chief Justices and Conference of State Court Administrators would seem to endorse the latter approach. The resolution advocated for "Encourag[ing], where appropriate, the broad integration over the next decade of the principles and methods of problem solving courts into the administration of justice to improve court processes and outcomes while preserving the rule of law, and meeting the needs and expectations of litigants, victims, and the community" (Becker and Corrigan, 2002). The conferences reaffirmed this tesolution in 2004.

How problem- solving methods might be integrated in conventional court settings has only recently begun to receive attention from justice system representatives and researchers. The available literature is varied, and consists largely of descriptive accounts chronicling individual judges' perspectives or personal attempts to apply problem solving in conventional court settings (e.g., Bamberger, 2003; Casey and Rottman, 2000). A related literature considers how judges and lawyers might apply therapeutic jurisprudence, defined as a normative legal theory regarding the potential of law to contribute to therapeutic outcomes, in various contexts (e.g., Abrahamson, 2000; Wexler, 2000). Finally, others have considered opportunities and challenges to institutionalizing specialized problem- solving courts (e.g., Berman, 2004; Fox and Wolf, 2004).

To further explore these issues, the California Administrative Office of the Courts and Center for Court Innovation initiated a research partnership to address the nature and feasibility of expanding the practice of problem solving in conventional court settings. In 2003 and again in 2005, focus groups and interviews were conducted among current and former problem-solving-court judges in California and New York State, as well as with other stakeholders (primarily prosecutors, defense attorneys, probation officers, and treatment providers). The studies addressed which problemsolving principles and practices are more easily transferable to conventional courts and what barriers might impede wider application of those principles and practices (Farole et al., 2005, 2004; Farole, Puffet, and Rempel, 2005).