In a sense all courts solve problems, although traditionally, the approach is punitive – translating a crime into how many months or years a defendant owes society and warehousing him or her in a prison. While not excusing drug abuse, domestic violence, child neglect and other ills, problem-solving courts take a therapeutic solution-oriented approach to reduce recidivism and guide offenders toward productive lives.
Problem-solving courts began about a quarter-century ago and now number more than 3,000 across the United States, housed among the nation’s approximately 16,000 state courts but on separate dockets. Even though initially uninformed by the research around the consequences of adverse childhood experiences and the trauma-informed care movement, proponents say they have always addressed ACEs and trauma without necessarily knowing they were doing so.
Drug courts were the first type of problem-solving court, beginning with one established in Miami-Dade County, FL, in 1989, and they have become by far the most common. The National Drug Court Institute counted 2,734 in 2012 (the National Association of Drug Court Professionals provides this interactive map). The National Center for DWI Courts counted 651 courts that deal with those offenders as of 2013. The National Center of State Courts counted 401 mental health courts as of same year. Other types of problem-solving courts cover domestic violence, homelessness, prostitution, veterans’ issues, and early childhood. The latter are sometimes referred to as “Safe Babies” courts. (The numbers of specific types of courts cannot be simply added together because many, especially in urban areas, contain more than one type.)
Typically, problem-solving courts involve a judge who heads up a team that includes the attorneys, the defendant and a clinical professional who develops a well-defined case plan and carefully monitors the defendant’s compliance. Judges work with defendants from the starting point of what has happened to them, rather than what is wrong with them, and they meet frequently to develop communication and working relationships.
“Some of the programs that we’ve seen are trauma-informed programs,” says Nicole Waters, principal court research consultant for the national center. “Mental health courts and veteran’s courts definitely delve into trauma issues. There is a wide gamut of courts operating in this capacity to deal with underlying social problems.”
While the awareness of and practice in trauma-informed treatment is “on the rise,” Waters says, it’s hardly universal. “Some courts are doing [trauma] assessments and then not integrating that in their treatment plan, which is a problem,” she says. “Some courts are more aware than others.” Prostitution courts are among the most consistent in dealing with trauma, she adds, given that the sex trade often attracts those who have experienced abuse in the past.
Trauma-informed care has been emerging at courts all around the country, says Joan Gillece, director of the National Center for Trauma Informed Care, which tracks the growth of such courts and provides training and technical assistance.
“People are eager to learn about it,” she says. “The hard part is implementing it. It’s such a cultural shift. You have to start looking at, ‘How do we become strength-based vs. deficit-based? How we do move from behavioral control to collaboration?’ It’s a big shift, but one that I think makes for happier staff as well as people more satisfied with the services they’re receiving.” But it takes time, she stresses. “You can’t just go to a training and say, ‘Now I’m trauma-informed.’ ”
People who work in courts sometimes resist making the necessary cultural shifts, which Gillece attributes to simple human nature. “There’s resistance to change anywhere,” she says. “It’s important that the people with the most contact, people we serve, should have the opportunity to learn and start connecting the dots between trauma, and the behaviors that occur as a result of untreated trauma.”
While drug and mental health courts began before the justice system was introduced to trauma-informed care, they became more common once trauma emerged as a much-discussed issue, says Carol Fisler, director of the mental health court and alternative-to-detention programs at the Center for Court Innovation for the State of New York. The Brooklyn Mental Health Court, which the center operates, has served more than 1,000 participants in the past 13 years, she says.
“The problem-solving courts were inadvertently doing things right, from a trauma perspective,” she says. “The treatment community and the mental health policy community were starting to focus on trauma, and understanding the relationship between trauma and mental health problems, right about the time you started seeing an upswing in mental health courts. It took time for the courts and the criminal justice system to see the relevance of trauma, for their purposes.”
Research starting with the CDC-Kaiser Permanente Adverse Childhood Experiences (ACE) Study has shown a direct link between childhood adversity — ACEs – and the adult onset of chronic disease, mental illness, violence and being a victim of violence. ACEs create mental and physical health risks that continue to crop up over a person’s lifetime if not adequately addressed.
These can include developmental delays early in life, mental health and academic achievement issues in childhood, involvement in the juvenile justice system, and alcohol and drug abuse as a youth and adult.
The original ACE Study – the first of its 60+ research papers was published in 1998 — measured 10 types of childhood adversity, those that occurred before the age of 18. They are physical, verbal and sexual abuse; physical and emotional neglect; a family member with mental illness, or has been incarcerated or is abusing alcohol or other drugs; witnessing a mother being abused; losing a parent to divorce, separation or death. (Got Your ACE Score?) Twenty-nine states and Washington, D.C., have done their own ACE surveys, with similar results. Recent ACE surveys have added other types of trauma, including witnessing violence outside the home, racism, bullying and living in an unsafe neighborhood.
Of the 17,000 mostly white, college-educated people with jobs and great health insurance who participated in the original ACE Study, 64 percent had an ACE score of 1 or more; 38 percent had an ACE score of 2 or higher; 12 percent had an ACE score of 4 or more. The researchers found that the higher a person’s ACE score, the greater the risk of health and social issues. For example, compared with someone who has an ACE score of zero, a person with an ACE score of 4 is 12 times more likely to attempt suicide, seven times more likely to become an alcoholic, and twice as likely to have heart disease, according to the data.
Drug courts came about after judges and prosecutors saw people cycling through the system over and over, Fisler says. “They said, ‘If we can address the addiction, we can break the cycle of arrests, prosecution, punishment, release and recidivism.’ From very early on, all the research, I won’t say 100 percent, but the overwhelming bulk of the research (Multi-Site Adult Drug Court Evaluation: The Impact of Drug Courts; The Multi-Site Adult Drug Court Evaluation: Study Overview and Design; Research Update on Adult Drug Courts) found it was very effective at helping to connect people to treatment, improving retention rates and reducing recidivism.
“The same theory drove the creation of mental health courts: that mental illness is contributing to the behavior that’s getting people in trouble with the law,” Fisler adds. “If you can improve their symptoms, their functioning levels, they will be more stable and less likely to commit crimes. There is a much smaller body of research (Effectiveness of a short-term mental health court: Criminal recidivism one year postexit) but the trend has been extremely positive.”
Numerous studies have shown that these specialty courts reduce recidivism, although “it’s not as large as you would hope,” says Tom Nochajski, co-director of the Institute on Trauma and Trauma-Informed Care at the University of Buffalo. “The problem we’re finding is that the assessment process in treatment agencies doesn’t always look at trauma,” he says. “From a court’s perspective, knowing if an offender has experienced child abuse, whether physical or sexual, would be a great help. But they don’t always do that.”
Even within problem-solving courts, judges’ demeanor can vary widely, says Nochajski, recalling a PhD student whose dissertation examined that issue.
“Even though they are all therapeutic courts, judges have a wide range of how they handle things,” he says. “One judge came down from the bench, sat at a table with the individuals, told them they don’t have to call him ‘your honor,’ it was really a much more open type of environment. And then others stay behind the bench and still work in the context of the criminal justice system, punishment-based process.”
Across all types of problem-solving courts, judicial demeanor is a critical factor in determining whether defendants stay with the process, Fisler agrees. “Recent research on drug courts has been very explicit, that the factor that is most predictive of reductions in recidivism is the relationship between the participants and the judge,” she says. “People who report high perceptions of procedural fairness are much less likely to reoffend.”
Those perceptions result from the judge, clinicians and attorneys “taking the posture that we care about you, your voice matters, we acknowledge the fundamental worth of you as a person, we’re all invested in your success,” Fisler says. “That’s a very powerful set of forces that may well be the most important factor. It would be considered good practice for trauma-informed [care], treating people with dignity and creating an environment where they feel safe.”
The Judicial Point of View
Judges who have been running problem-solving courts, which are usually just part of their overall docket, say they have been pleased with the results and encourage their colleagues around the country to consider what types of courts are most needed in their local areas.
Judge Ginger Lerner-Wren, who presides in the criminal division of the 17th Judicial Circuit, in Broward County, FL, pioneered the nation’s first mental health court in 1997, dedicated to the decriminalization of people arrested on non-violent misdemeanors who are found to have serious mental illness, intellectual disabilities or traumatic brain injuries.
“Can courts act as therapeutic agents, particularly applied to highly complicated and vexing social problems?” Lerner-Wren asks. “We know that the immensely tragic trend of criminalization of persons with mental illness has been ongoing for decades. The prevalence and overrepresentation is staggering.”
The creation of her court stemmed in part from a 1994 federal class-action lawsuit brought against the local jail system for overcrowding and lack of adequate mental health treatment and care, which led to the development of an ad-hoc mental health criminal justice task force. Based on a suggestion from the public defender’s office, the task force recommended the problem-solving courts, and chose Lerner-Wren based on her experience in mental health disability law, among other reasons.
“The court uses a therapeutic jurisprudence approach where procedural justice really demands a whole different style, if you will, of judging,” she says. “From how one communicates in court, with tone and language that are welcoming, the messaging is very clear that it’s not a trial court, that the mental health court is intended to assist individuals who are interested in receiving care, that the court will help link, coordinate and advocate to hold community providers more accountable.”
The task force helped to build strong collaborations with existing providers, and during the 17 years since, the part-time court has diverted nearly 17,000 people from jail, Lerner-Wren says. “We established a very simple, consumer-friendly referral process so that anybody—judges, attorneys, community mental health case managers, family members, social workers—could call our office. If a loved one or somebody that they’re representing could benefit from the services, they just have to call my office and we put them on the docket the very next day. It’s a spontaneous docket because the goal is to get people out of an inappropriate jail setting and into community or acute care hospital setting, as swiftly and as safely as possible.”
Lerner-Wren works with a clinician and licensed clinical social worker with expertise in psychiatric rehabilitation and community behavioral health to do screenings and assessment right in the courtroom. “It’s done on the spot,” she says. “Our courtroom is amazing to watch, with a dozen things going on at once, people getting screening, other people having discussions. … We will do anything in our power to help them.”Judge Lynn Tepper, who presides in the Sixth Judicial Circuit in Pasco and Pinellas Counties, Fla., started a drug court that, under state statute, defendants facing third-degree felonies can apply for, be placed in a formal court setting and eventually get their charges dismissed. (Florida defines third-degree felonies as the least serious type, punishable by up to five years in prison and a fine of up to $5,000.) She had too often seen the same people going in and out of prison four or more times for drug possession.
“This wasn’t working,” she says. “Under the sentencing guidelines, if you could find a lawful basis to deviate down, such as a substance abuse or mental health problem, you could not put them in prison. On a regular basis, we created a drug docket in criminal court. The public defender’s office would request it. Everybody said, ‘You know what? We’ll step up to the plate. Just tell us what to do.’ ”
Tepper held her drug court after her regular docket, the probation department voluntarily assigned someone to attend, and the public defender or other defense counsel was present, she says. Defendants check in every two weeks to a month, and their families are often heavy participants in the process.
“It was highly successful,” she says. “These people stayed out of prison because we dealt with the underlying problems.”
Not all judges are cut out to run problem-solving courts, Tepper believes. “You have to have a certain amount of comfort in engaging people through encouragement, and not being judgmental,” she says. “It’s not that you’re giving up your role as a judge. If it’s an evidentiary hearing, you still need to be the trier of fact. But you have to be able to switch roles. Not all judges want to do that. Not all judges think it’s their job to do that. They think it’s all touchy-feely.” But some overcome their initial discomfort. “They get there, and they thrive,” she adds.
And some judges and other key personnel take a while to accept the fact that problem-solving courts require much more of their time—at least in the early stages. “Eventually people start to realize improvements and don’t come back,” Tepper says. “That takes time to build in any given community. You need to have the belief that it works and be willing to commit [the upfront time].” This upfront time varies, she says. “It easily will take five years but should be an ongoing process,” Tepper notes.
Before she took the bench, she was an assistant public defender for two years and four years in private practice. “During those years, I was involved in many aspects of the community [president of American Cancer Society Board, president of the local community Mental Health board]. Before and after my election I spoke ceaselessly to service groups and any community or educational group that invited me. I spoke on the local radio stations and answered questions. I learned what was and what was not available in my community. I made lifetime connections.
“Many of those have formed the basis of the connections I have today with our providers for Dependency Court. As a result I can ask for the expansion or creation of needed services or encourage grant applications and local providers are more than willing to rise to meet the need.”
A judge can be a convener, she says, inviting diverse community members — including the faith-based and business communities as well as nonprofits — to meetings. “The purpose is not to lecture to the group,” she explains, “but to solicit ideas and information that would help whatever division you are about to begin. Before starting a drug court without any money, I invited the existing players to a meeting where they stepped up to the plate to voluntarily offer needed services.”
It has been that way each time Tepper has rotated to a different division. “I give programs opportunities on a regular basis to educate our group of ‘stakeholders’ about their organization and services. When I learn of new programs I contact them and ask for credentials and curriculums. I have visited over the years many of the programs and residences I send parents and children to, so that I could see first-hand what it would be like.” And she has pushed to shut down the ones that are ineffective.
Tepper now runs a Dependency Court. For the parents in that court, she runs the docket much like a drug court, with frequent court dates to determine progress, solve problems or remove roadblocks, as well as loosen restrictions on parenting time, i.e., visitation with their children.
“While in court we provide the parents and any children with books, stuffed animals, materials they may find helpful, lots of free community resources to meet their needs including food, shelter, medical care, utility or rental deposits,” she notes. “I also casually give them healthy snacks. It is usually a time of encouragement and redirection, as needed. It is very much like a typical drug court. We celebrate days of sobriety. Most parents look forward to coming to court and elect to come in sooner rather than later.”
Judge Jo Ann Ferdinand launched a drug court in 1996, over which she still presides in Kings County (N.Y.) Superior Court. Rather than wait for people to show that they have a drug problem, the court screens people on the theory that their addiction might be the underlying reason for their crimes and offers the opportunity for treatment upfront.
“We didn’t know, at that point in 1996, that it was called trauma-informed care,” she says. “But we were looking for special services that people in trauma need,” such as mental health evaluations, and gender-specific interventions for women. “The traditional treatment was break them down to build them up, which is the worst thing you can do for women who are trauma survivors,” she adds.
In addition to negative consequences like criminal convictions and jail, or a continued life of drug abuse and disengagement from one’s family, if such offenders won’t seek help for their addictions, Ferdinand says her court and others like it offer the carrots of positive reinforcement. This can mean fewer hearings over time, a move out of a residential program and back into the community, and, eventually, dismissal of their case and sealing of the record.
Evaluations have shown “far lower” recidivism among those who have taken part in drug courts, Ferdinand says, including studies by the Center for Court Innovation and the National Association for Drug Court Professionals. “People are working, women get custody of their children, fathers get custody, they’re paying taxes,” she says. “All of the outcome research has shown that it’s a far better resolution for society.”
Ferdinand has paid careful attention to the theatrical aspects of drug court. For example, a court officer who leads defendants into court used to jingle their handcuffs behind their back to send a not so subtle message of dominance and punishment. At a certain point she said, “Hold on a minute. These are people who have been restrained, who have been abused. We may be re-traumatizing people. The court officers, they got it. … The whole atmosphere in a trauma-informed courtroom is entirely different. You should always be treating people with respect, but you need a special kind of understanding of what’s going on.”
Inherent in that understanding is the fact that punishment, like jail time, needs to be used sparingly and for short periods, Ferdinand says. When she asks people who have spent time behind bars what they learned there, “to me there’s only one reasonable answer: I don’t want to be there. When you have somebody come back and say, ‘I realized I can’t do it [function in society], please let me stay in jail,’ you know you’re not talking to somebody with the self image, the confidence, that is needed to get better.”
After noticing that veterans often showed up in drug court, likely after self-medicating to deal with their lingering post-traumatic stress disorder, she and her colleagues spun off a special Veterans Court—which has been replicated around the country. A key piece of the treatment team in those courts has been mentors who are veterans, Ferdinand says.
“Veterans, they sit in court and say, ‘None of you understand because you don’t know what I’ve been through.’ But with other veterans as mentors and participants, they can’t say that. If they have other people who have shared their experiences and values, it gives them an opportunity to face their problems and deal with them.”
Illinois Appellate Justice Kathryn Zenoff began a mental health court in Winnebago County and, since becoming an appellate justice, she has served as presiding judge of problem-solving courts in the 17th Judicial Circuit. The impetus for the mental health court, which began in February 2005, was the combination of significant jail overcrowding and “a very insightful and forward-looking CEO of the mental health center,” she says. “He walked over to the courthouse and said, ‘Do you know one of the reasons you have such a significant mental health issue? Persons revolving in and out of jail.”
Zenoff was then asked to convene a task force of stakeholders in criminal justice, mental health and the community at large. They took a look at mental health courts around the country and decided that the therapeutic approach could be beneficial, and the court they started took the then-unusual approach of accepting felony defendants in addition to misdemeanors, she says.
The resulting Therapeutic Intervention Program (TIP) Court was entirely voluntary and required entering a guilty plea, Zenoff says. “It’s certainly been beneficial from the standpoint of the individuals in the court,” she says. “The close relationship the judge is able to develop with the participants in the program helps them to be able to manage their own recovery, stick with their medication and continue on the road.”
Not all who entered the TIP Court have successfully completed it, Zenoff says, but the overall numbers of jail days, hospitalizations and crimes subsequently committed went down significantly among those who participated. According to Dr. Penny Billman, the problem-solving courts coordinator, the findings included:
- 68% decrease in the number of hospital days
- 35% decrease in the number of jail days
- 72% decrease in the number of bookings for arrest
“It certainly benefited the community cost-wise as well as in terms of public safety,” says Zenoff. The data, collected on 143 TIP court participants who had entered the program during 2005 through 2008, and who by 2014 had completed at least five years after exiting TIP court, allowed for a comparison between their five years before entering TIP court vs. five years after exiting TIP Court.
The circuit’s success has been repeated elsewhere, leading to the establishment of the Illinois Center of Excellence for Behavioral Health and Justice, based at the University of Illinois College of Medicine in Rockford, which provides training to mental health courts around the state as well as those interested in beginning one, Zenoff says.
Hennepin County, MN, has specialized calendars for drug cases, DWI, mental health, veterans, homelessness and prostitution, all
of which have protocols tailored to their populations, says Judge Bruce Peterson.
“All of those courts are attuned to trauma,” he says. “They all involve using the court as a gateway to community treatment and support services, with very frequent judicial reviews, in a very informal setting. I have people come right up to the bench, I shake hands with them, some people I see every week.”
They have an in-depth conversation with the treatment provider and probation officer about how they’re doing and how their recovery is going, Peterson says. “It’s a calm, steady, supportive interaction with an authority figure who can be counted on to be fair,” he says. “That, in and of itself, is a response to trauma. People are anxious. They’re full of shame and guilt.”
Ultimately, dealing with trauma and ACEs are critical to the success of problem-solving courts, even if they didn’t start out with that mission. The mental health court in Broward County, FL, presumes trauma, Lerner-Wren says.
“We know the profile, in terms of what people come in, and the stigma involved with mental illness,” she says. “We know the prevalence of homelessness. We know the marginalization, typically, of this population.”
Her jurisprudence is aimed to convey that “this court gets it, that this court is not interested in doing business as usual, in terms of the criminalization of people, and that we are here if possible to do the opposite, to level the playing field, to help people get the care and the services they need,” she adds. “How we communicate is geared toward developing trust and helping to reduce the stigma surrounding mental illness by providing very powerful information.”
Inherent in that aim is talking about the original ACE study, Lerner-Wren says, which shows “what happens when individuals, through childhood or across a lifespan, are exposed to various traumatic events and never get the type of therapeutic treatment they need. Personal solutions [abusing alcohol or illegal drugs] that people seek, because they may be suffering emotional pain, often lead to some relief, but then they have greater negative consequences,” such as addiction and incarceration.
Sexual victimization and other maltreatment are particularly prevalent among women and girls who are involved with the justice system, Lerner-Wren says. “We want to make sure … that we’re braiding the ACE Study into our procedural justice communications, so we can be very authentic about what happens in life and how these things happen, and that there’s a different approach to transcend these problems,” she says. “It does involve taking responsibility for your mental health, but we will be there to help them carve out a path of healing.”
Lerner-Wren says she’s careful to say that she’s not implying that a given defendant has experienced any particular ACE, and she typically doesn’t ask what happened to them unless they volunteer the information—but she knows the vast majority have experienced ACEs. “This is what the data tells us,” she says. “If it does pertain to you, let me tell you about how, through getting help and treatment and services, you have the opportunity to recover.”
Participants often suddenly sit up straighter and start shaking their heads “yes” when Lerner-Wren says this. “This information is powerful because it provides the hope that they’re going to be able to get out of this trap that unresolved trauma creates,” she says. “That they don’t have to drag this shadow around for the rest of their lives. It’s always an inspirational conversation. It’s by far my favorite research base to share.”