Guards at Rikers Island (photo: Michael Appleton/Mayor's Office)
So-called problem-solving courts are now firmly entrenched in the American criminal justice system. What started with the development of a few local community courts soon expanded to a dizzying array of specialty courts and the problem-solving court industrial complex. And the situation, though well-intentioned, has unintended consequences.
Presently, across the country there are more than 4,000 community courts, domestic violence courts, fathering courts, youth courts, drug courts, mental health courts, sex offense courts, driving while intoxicated courts, human trafficking courts, and more. New York State has long been at the problem-solving court vanguard and is home to an unprecedented 141 drug courts.
While it is indisputable that the old way of doing business in the Criminal Court was not working, the problem-solving court cottage industry still must be carefully scrutinized. Although imbued with noble goals, it is imperative to ask whether these courts actually discourage a careful, critical examination of the constitutionality of the police behavior that brought the accused into court in the first place.
Problem-solving courts seek to promote a mindset of cooperation among all the institutional players. Defense lawyers are urged to shift from a litigation-based, adversarial approach to a team-based problem-solving ideal. Many experts believe that by abandoning even the semblance of the adversarial system, problem-solving courts inappropriately fast forward to sentencing. Particularly troubling are those courts that encourage defendants, implicitly or explicitly, to plead guilty early in the proceedings. Additional due process concerns are raised in those courts that impose pre-adjudication conditions on the accused.
The result is a system exactly the opposite of one that encourages a probing examination of the legality of the underlying arrest and proof of the accused’s guilt. Instead, problem-solving courts focus on treatment, a discussion more appropriately reserved for sentencing.
Whose problems do these courts purport to solve? If the courts are concerned with the defendant and his or her "problems," then we must ask what sort of therapeutic value is added by the problem-solving court. Well before terms like problem-solving courts and "therapeutic jurisprudence" came into the vernacular, scholars found that defendants cared about more than just the outcomes of their cases. It turned out that defendants cared deeply about the process and whether they were treated justly. In fact, many suggested that treating defendants fairly increased the chances that they would avoid future misconduct.
The defendants' feelings of unfairness did not have to do with whether they were treated therapeutically or whether their problems were solved. Rather, defendants clamored for what boils down to basic due process. They wanted an advocate to fight for their rights and for a judge to give them their day in court. Defendants voiced particular concerns about their lawyers. Countless defendants stated that their lawyers simply urged them, forcefully, to plead guilty. Defendants wanted an advocate; a lawyer who would fight to enforce their rights.
If we truly care about therapeutic value to the accused of court proceedings we would strive mightily to ensure that every defendant has their day in court, if desired, and that all precious constitutional rights are protected. Those do not seem to be high priority goals of the problem-solving courts.
What follows is drug treatment court from the point of view of the accused. It is based on a composite of many clients who have gone through the treatment court process.
Inside Drug Court: The Defendant’s Perspective
So another addict (who turns out to be an undercover cop) asks me to buy him a bag in exchange for a bag for myself. It’s the easiest, least dangerous means of getting my drugs because otherwise I may have to resort to other activities that can potentially put me or other people in danger.
So I do it. He gives me 20 bucks and I go to a guy I’ve copped from before and ask for two bags. I return with the drugs and give my new business partner his share. He walks away and within seconds there’s a team of cops on top of me, putting their hands inside my pockets, down my pants, treating and speaking to me in a demeaning and dehumanizing way for everyone on the street to see and hear. But who really cares, I’m just a drug addict. At this point, I really don’t care much either; my sense of self worth faded long ago.
I’m held there on the street, hands cuffed behind my back and surrounded by cops, until I hear “positive ID” on the cop’s radio. I don’t see the guy I bought for or the guy I bought from. I’m pushed into a van where other lucky bastards like me have been awaiting the ride to the precinct. At the precinct, we’re herded like cattle into a pen and “processed” like some cheap junk on an assembly line. I spend hours sitting on a hard metal bench shoulder to shoulder with too many sweaty guys in a hot and stinky cage. The faces are always the same. Another bunch of black and Hispanic guys arrested for all kinds of stupid things, some mentally ill, some totally stressed, some angry, some coming down from a high, some suffering from withdrawal, some who have not had a warm meal or a bed in months. But mostly all of us are just resigned to our fate.
After a few hours, a cop orders me out of the holding cell and asks questions about my “pedigree” like I’m some kind of dog -- where you live, where you born, date of birth, height, weight, any medical history (like they really care)? Then it’s back in the van to Central Booking where more “processing” and caging takes place until I’m brought into yet another holding cell where I wait to meet a lawyer and see a judge.
The lawyer is well meaning. I think. She talks to me for five minutes. She asks me about the conversation I had with the undercover cop. She asks me if I have scars or tattoos. She asks about the lighting and for a description of the area. I tell her it was dark. That it was in front of a building that looks like a lot of other buildings. It was near a bodega. What else can I say? There was dog crap on the sidewalk, broken glass in the street, and the street lamps (at least the ones that work) are a depressing shade of orange.
Then she tells me, very nicely, that I have a terrible criminal record and a messed up record for coming to court (as if I didn’t know that already). I know the drill. No judge is going to release me because they don’t expect me to come back. It doesn’t help that I’m currently homeless. When you’re homeless no one expects you to be responsible enough to show up to anything.
I see the judge a couple hours later. She sets bail. The amount doesn’t matter; I don’t have five bucks to my name. But the lawyer tells me I’ll get released if the cops don’t come in to testify in five days. Maybe they won’t. They seemed OK. They told me they wanted to help me. They told me it wasn’t a big deal. Maybe a misdemeanor. Maybe I’d get drug treatment. Drug treatment? I guess it’s better than jail but I’m not ready for that. Not yet. And this is a B.S. case. No, I’m not taking nothing. Except maybe a misdemeanor. Yeah, I’ll take a misdemeanor. And time served.
Five days later and my case is in the grand jury. The cops showed up to testify. Damn. I was really hoping to get out today. Now the lawyer is talking about me testifying but she thinks I shouldn’t. Maybe she’s right. I don’t really want to testify anyway. F that. Then I’m back in front of the judge. We get another date to come back to court. Back to Rikers. As long as I keep my head down out there it won’t be too bad. The stuff that happens there really don’t bother me anymore. Not like it used to.
It’s the next court date and I'm back in another holding cell. Been up since the 4 a.m. trip from Rikers to the court. Waiting to see the judge. My palms are sweaty, my stomach is in knots, and I’m wondering if the case is going to get dropped, if I’m going to jail, or if I’m just going to be coming back and forth to court. The lawyer meets me in a booth. She talks to me for five minutes. She asks me about treatment. I ask her about my defense. She tells me about the problems with the case and goes back to talking about treatment. She says if I make it through treatment I can end my case with a misdemeanor and a conditional discharge. She says it doesn’t hurt to be interviewed by some program person. I go along with it but I’m not sure it’s such a good idea. Then again, what else am I gonna do?
I meet with a rep from the drug program. I admit I’m an addict. No surprise to anyone anyway, right? She says I’m qualified. No surprise to that either, right? I’m qualified. That’s what these people say instead of saying I’m a f-ing junky. I’m “qualified” like I just got approved for a loan to buy a house or start a business. But it really just means I’m a f-ed up junky with no options.
Next thing I know, I’m in front of a judge talking about me pleading guilty to selling drugs to an undercover. She tells me if I finish the drug treatment program I’ll get a misdemeanor. If not, it’s back upstate for two years plus two years post release supervision. My lawyer doesn’t say anything. She just repeats to me what the judge said and adds empty words of encouragement. I’ve heard those before. She didn’t make a single argument. She never asked a single question to any of the cops who set me up that day. Why aren’t the cops here in court? They’re probably out there setting up the next guy.
I’m thinking screw this, I’ll take it to trial. Make the cops come to court. I’m not going out like this. Not this time. I copped out every other time but they set me up this time. Yeah, take this damn thing to trial. Then I hear the judge say it’s a “one-time offer” and my lawyer starts pleading with me to take the plea. Whatever. Fine, I’ll take it. But before I plead out I turn and whisper to my lawyer, "I should've taken the two bags and run when I did it, right?”
Steve Zeidman is a professor of law at CUNY School of Law. On Twitter @SteveZeidman. CB is a public defender in New York City.