Making the Case for Hands-On Courts

Judges are learning that a problem-solving approach can stop the cycles of drug use and dysfunction

by Judith S. Kaye, Chief Judge of the State of New York

(Newsweek, October 11, 2000, p. 13)

When I graduated from law school back in 1962, becoming a judge was the farthest thing from my mind. Not that the idea wasn't appealing. I was intrigue by the intellectual challenges that the job posed as well as the opportunity to "do justice" and make a difference in people's lives. It's just that the obstacles were daunting, especially for a woman. Still I could dream, couldn't I?

Fast-forward to 1999. For the past six years I have served as New York's chief judge. As head of a branch of government with more than 15,000 employees and 4 million new cases a year, I've seen firsthand what it takes to keep the wheels of justice turning. I have also seen that, overwhelmingly, the New York courts discharge their heavy responsibility with great care, working diligently to achieve the goal of equal justice under law.

But I'm writing this essay to hand out congratulations. I'm writing because that dream of the 1962 doesn't quiet line up with the reality of 1999. "Doing justice," I find, is a lot tougher than my textbooks ever suggested.

Let's face facts: many of the cases in state courts today are not complicated legal matters. But they do involve people with complicated lives. If you take a trip to criminal court or family court, you'll be reminded more of "M*A*S*H" than of "Perry Mason." Judges grapple with dockets driven by drug abuse, domestic violence and family dysfunction. There are new issues for the courts, and yet judicial responses tend to be firmly rooted in the past.

Not surprisingly, in many of today's cases, the traditional approach yields unsatisfying results. The addict arrested fro drug dealing is adjudicated, does time, than goes right back to dealing on the street. The battered wife obtains a protective order, goes home and is beaten again. Every legal right of the litigants is protected, all procedures followed, yet we aren't making a dent in the underlying problem. Not good for the parties involved. Not good for the community. Not good for the courts.

The volume of our dockets demands efficient management. But processing more cases more quickly isn't the whole answer. We also need to take a step back and ask, "Is there a better way to do this?" In fact, across the country, some judges are starting to rethink business as usual.

Here in New York we now have 15 drug courts that direct nonviolent defendants to strictly supervised drug treatment instead of prison, halting the revolving door of drugs-crime-jail. We're also testing that model in family court to stop the devastating cycle of drugs-child neglect-foster care. We're developing "community courts" that seek to restore distressed New York neighborhoods by making low-level, nonviolent offenders payt for their deeds by removing graffiti and cleaning streets. And half a dozen domestic-violence courts put immediate emphasis on victim safety and defendant accountability.

In these new courts, judges are active participants in a problem-solving process. In the drug courts, judges oversee defendants in drug treatment- cheering them when they achieve sobriety and sanctioning them (perhaps with a weekend jail stay) if they fall back a step.

What's so different about this approach? First is the court's belief that we can and should play a role in trying to solve the problems that are fueling our caseloads. Second is the belief that outcomes - not just process and precedents - matter. Protecting the rights of an addicted mother is important. So is protecting her children and getting her off drugs.

Third is the recognition that courts' coercive powers can change people's behavior. We know, for example, that a defendant in court- ordered drug treatment is twice as likely to complete the program as someone who helps voluntarily. Finally, we've learned that courts can't carry out this problem-solving role alone. Collaborations with the government agencies and community groups are essential.

Do problem-solving courts raise new questions about the roles of judges and attorneys? You bet. But anyone who doubts the potential of this approach needs to attend a family-treatment-court graduation, as I did recently. There were a lot of happy tears- including mine- as eight formally addicted mothers were reunited in record time with their kids who had been in foster care.

Some may argue that such hands-on involvement clashes with our branch's traditional dignity and reserve. But what's the alternative? The flood of cases shows no sign of letting up. We can either bail faster or look for new ways to stem the tide.

With a problem-solving attitude, we can make a real difference in the lives of litigants and in the communities in which we all live. And in the end, that comes pretty close to the dream that drew so many of us to the law, and to judicial service, in the first place.