Ten Tenets of Fair and Effective Problem Solving Courts
"Problem Solving Courts" are spreading across the country. Though
the current wave of interest started with the creation of Miami's Drug Court
in 1989, the nation's courts had a long prior history of seeking to solve the
problems of offenders and communities through the imposition of sentences with
rehabilitative conditions or indeterminate sentences with a chance for early
release based on rehabilitation. The advent of mandatory minimums and
determinate sentencing foreclosed many such options, leading to the
establishment of Problem-Solving Courts as a new vehicle for effecting
established rehabilitative objectives.
There currently are more than 500 drug courts operating, and more than
280 others currently in the planning process, in all 50 states. Although drug
courts have existed the longest and been studied the most, Community Courts,
Mental Health Courts, and other specialty courts are beginning to proliferate.
Despite Department of Justice and other publications that urge inclusion of
defenders in the adjudication partnerships that form to establish Problem
Solving Courts, the voice of the defense bar has been sporadic at best.
Although defense representation is an important part of the operation of such
courts, more often than not, defenders are excluded from the policymaking
processes which accompany the design, implementation and on-going evaluation and
monitoring of Problem Solving Courts. As a result, an important voice for
fairness and a significant treatment resource are lost.
The following guidelines have been developed to increase both the fairness
and the effectiveness of Problem Solving Courts, while addressing concerns
regarding the defense role within them. They are based upon the research done
in the drug court arena by pretrial services experts and others and the
extensive collective expertise that defender chiefs have developed as a result
of their experiences with the many different specialty courts across the
country. There is not as yet, a single, widely accepted definition of Problem
Solving Courts. For the purposes of these guidelines, Problem Solving Courts
include courts which are aimed at reducing crime and increasing public safety by
providing appropriate, individualized treatment and other resources aimed at
addressing long-standing community issues (such as drug addiction,
homelessness or mental illness) underlying criminal conduct.
The Ten Tenets
- Qualified representatives of the indigent defense bar shall have the opportunity
to meaningfully participate in the design, implementation and operation of the
court, including the determination of participant eligibility and selection of
service providers. Meaningful participation includes reliance on the principles
of adjudication partnerships that operate pursuant to a consensus approach in
the decision-making and planning processes. The composition of the group
should be balanced so that all functions have the same number of representatives
at the table. Meaningful participation includes input into any on-going
monitoring or evaluation process that is established to review and evaluate
- Qualified representatives of the indigent defense bar shall have the
opportunity to meaningfully participate in developing policies and procedures
for the problem-solving court that ensure confidentiality and address privacy
concerns, including (but not limited to) record-keeping, access to
information and expungement.
Problem solving courts should afford resource parity between the
prosecution and the defense. All criminal justice entities involved in the
court must work to ensure that defenders have equal access to grant or other
resources for training and staff.
The accused individual's decision to enter a problem solving court must be
voluntary. Voluntary participation is consistent with an individual's
pre-adjudication status as well as the rehabilitative objectives.
The accused individual shall not be required to plead guilty in order to enter a
problem solving court. This is consistent with diversion standards adopted by
the National Association of Pretrial Services Agencies. See Pretrial
Diversion Standard 3.3 at 15 (1995). The standards stress, requiring a
defendant to enter a guilty plea prior to entering a diversion program does
not have therapeutic value. Id.
The accused individual shall have the right to review with counsel the program
requirements and possible outcomes. Counsel shall have a reasonable amount of
time to investigate cases before advising clients regarding their election to
enter a problem solving court.
The accused individual shall be able to voluntarily withdraw from a problem
solving court at any time without prejudice to his or her trial rights. This is
consistent with the standards adopted by the National Association of Pretrial
Services Agencies. See Pretrial Diversion Standard 6.1 at 30 (1995).
The court, prosecutor, legislature or other appropriate entity shall implement a
policy that protects the accused s privilege against self-incrimination.
Treatment or other program requirements should be the least restrictive possible
to achieve agreed-upon goals. Upon successful completion of the program, charges
shall be dismissed with prejudice and the accused shall have his or her record
expunged in compliance with state law or agreed upon policies.
Nothing in the problem solving court policies or procedures should
compromise counsel s ethical responsibility to zealously advocate for his or her
client, including the right to discovery, to challenge evidence or findings
and the right to recommend alternative treatments or sanctions.