Alternative Approaches: Beyond Problem-Solving Courts

Problem-solving courts were born out of a well-meaning experimentalist spirit, a spirit that is very much in line with the vision of a recent symposium on the multidoor criminal courthouse.¹ These courts, which include drug courts, mental health courts, veterans courts, and many other specialized criminal courts, were created as a way to close one door to the criminal courthouse — the so-called “revolving door” that appeared to bring some people accused of crimes back into court as soon as they exited. Problem-solving court judges sought to open a different door for some of those who entered their courtrooms, one that they hoped would lead out of the criminal system entirely. The judges attempted to realize this goal by offering treatment instead of, or in addition to, incarceration under the belief that such interventions would prevent people from committing crimes in the future.

The problem-solving court movement is now more than 30 years old and the results of this experiment in court reform are underwhelming. Although these specialized criminal courts are widely celebrated as a successful evidence-based reform with demonstrated success in reducing recidivism, as I have argued elsewhere, “the empirical landscape of problem-solving court efficacy is more complicated than most proponents acknowledge.” While drug court outcomes have been subject to robust empirical scrutiny, other problem-solving courts have been tested only sporadically, if at all. The claims of success for these other courts are based on the supposed success of drug courts — but the actual studies of drug courts hardly depict an unmitigated success story. Overall, some drug court studies show that some of the people who graduate from some drug court programs are then arrested for or convicted of crimes less frequently than people who follow traditional punishment paths.

Meanwhile, the 40 percent to 60 percent of people who begin but do not complete problem-solving court programs often fare worse than they would have otherwise: Many are ultimately incarcerated for at least as long as they would have been if they had been convicted in a traditional court, after having already spent time attempting the treatment court process. Many court participants, regardless of whether they graduate from the court process or not, are saddled with extra debt from the court-imposed cost of participation. Moreover, these underwhelming outcomes cost more money than traditional punishment processes. For nearly as long as these specialized courts have existed, there have been efforts to reform this reform model to increase court retention, decrease recidivism, and save more money.

I argue that it is time to stop trying to perfect problem-solving courts and to instead begin to close this door to the criminal courthouse altogether. This will require some radical honesty about what these specialized courts do — and do not do — and the ways this punishment model creates unintended harms. But this reckoning is also an opportunity to revive the experimentalist spirit that animated the earliest problem-solving courts and inspired judges to do things differently in the hopes of building a better future. This ultimately is a call to envision new ways to provide services and opportunities that could help people thrive, and an invitation to open doors to new paths that avoid the system altogether. In short, I argue that it is time to move beyond problem-solving courts.

Looking Backward: What We’ve Learned About Problem-Solving Courts

Problem-solving courts are specialized criminal courts (or, more precisely, court dockets) focused on people charged with a particular type of crime or who share a particular characteristic. As I have described in earlier work, problem-solving courts have generally developed along three different models: treatment courts, accountability courts, and status courts.

Treatment courts, which include drug courts and mental health courts, are the original and most prevalent type of problem-solving court. They aim to address a condition that is believed to have brought the court participant into court, such as substance use disorder or a mental health condition. Accountability courts, which include domestic violence courts and sex offense courts, provide enhanced monitoring to people charged with certain kinds of crimes as a way to increase accountability and victim protection. The most recently developed model is the status court, which seeks to address the purportedly distinct needs of people in certain status groups such as veterans and girls. And problem-solving courts are an incredibly popular criminal system reform. There are currently more than 4,000 drug courts, 450 mental health courts, and 400 veterans courts across the country.

First and perhaps most controversially, these courts do not work — or, at least not nearly as well as many claim. The original goal of problem-solving courts was to provide services believed to help people avoid future interaction with the criminal system, a goal that has been collapsed into a myopic focus on the courts’ impact on the recidivism rates of court participants. The problem-solving court model in general, and drug courts in particular, have been repeatedly and thoroughly assessed through empirical research to discern whether they achieve their recidivism-reduction goal. The decades of empirical scrutiny afforded to these specialized courts simply do not support the success story that court proponents circulate.

While the earliest court studies indicated that many courts achieved promising recidivism reductions, these studies were marred by methodological flaws, including small sample sizes and inadequate comparison groups, which undermined or limited their findings. Subsequent studies, conducted in ways that addressed some of these flaws, arrived at conflicting conclusions about whether the courts reduce recidivism. While some outcome assessments revealed recidivism reductions, others showed no such impact, and still others indicated that court participation actually increased recidivism. The National Drug Court Resource Center recently summarized meta-analyses of drug court outcomes as demonstrating “moderate evidence” that court participation facilitated recidivism reductions and noted that the empirical literature was “generally supportive” of adult drug courts. Other analyses have similarly concluded that drug courts achieve “modest” recidivism reductions. I have summarized the relevant literature in previous work as follows: “[D]rug court evaluations seem to demonstrate that some drug courts modestly reduce recidivism for some individuals, some of the time.”

A key to these underwhelming results is that many, and sometimes most, people who enter the court programs are dismissed from the court before program completion. Graduation rates for adult drug courts hover at around 40 percent to 60 percent, and studies have found similar rates for mental health courts. Most specialized courts operate on a post-adjudication model, which means that most of the 40 percent to 60 percent who do not complete the process have already pleaded guilty to the underlying crime. When they are terminated from the specialized court program, they face the same original sentencing range from before they entered the program and often end up with a total sentence that is substantially longer than they would have otherwise faced if they had pursued a traditional path. One study demonstrated that even those who graduate from mental health court serve terms of supervision that exceed what they would have received from a traditional court by a year or more.

While many specialized court judges work with an understanding that failure is part of the treatment process, no rules specify how many attempts a court participant is allowed to make at treatment before court participation is revoked. It remains within the judge’s discretion to terminate the participant for any failure to adhere to the treatment program. And this termination decision, like all other discretionary decisions that animate the criminal system, can be influenced by the race of the participant, often to the detriment of Black people and other people of color.

In light of these dynamics, those who may benefit the most from the treatment programs made available through court participation may make the rational decision to forego treatment court altogether, knowing that they would likely struggle at times to adhere to the court program. Moreover, the existence of problem-solving courts can widen the net of criminal system involvement for others, who may be arrested and prosecuted in these specialized courts because law enforcement and prosecutors know the courts provide a path to otherwise unavailable treatment services. Thus, problem-solving courts are, for many, a “non-alternative alternative to incarceration.”

Even if these courts achieved the recidivism reduction they claim, many other reasons for moving beyond problem-solving courts would remain. Medical and public health experts have questioned the propriety, efficacy, and safety of combining therapy with punishment. A 2017 Physicians for Human Rights (PHR) assessment of drug courts concluded the courts “largely failed at providing treatment to those who truly needed it” while prioritizing participation for those who did not, and documented instances in which “court officials with no medical background mandated inappropriate treatment not rooted in the evidence base.” As a result of these and other observations, PHR concluded that drug courts “posed significant human rights concerns.” In March 2019, independent human rights experts for the United Nations Special Rapporteurs similarly warned that drug courts “pose dangers of punitive approaches encroaching on medical and health care matters.”

Meanwhile, legal scholars have highlighted concerns about the ways problem-solving courts change the roles and expectations of criminal system actors. Specialized courts embrace an approach that positions the judge, prosecutor, and defense attorney as part of the same “team” dedicated to the defendant’s completion of the court program. Accordingly, problem-solving court judges shed their role as a neutral arbiter of a legal dispute, and defense attorneys are expected to swap their identity as zealous advocate and adversary for that of government ally, working alongside the prosecutor to ensure the defendant complies with court mandates. As Mae Quinn has cautioned, this team-based approach raises complicated ethical issues about the role of defense counsel and undermines a defendant’s constitutional right to effective representation.

Moreover, as I have argued previously, problem-solving courts — despite their supposed evidence-based commitments — often fail to embrace scientific evidence that casts doubt on their practices or their foundational premises. Once a particular conception of treatment is baked into the court process, those who are dedicated to and vested with authority in the court process may be reluctant or even antagonistic toward changing it — even if new or previously overlooked insights from the relevant medical or scientific communities support making such changes. The original drug court model, for example, is based on an abstinence-only treatment model that mandates immediate and complete cessation of intoxicating substances. Drug court judges routinely craft treatment plans that require court participants to complete traditional abstinence-based 12-step programs and will find that participants violated program requirements if drug tests indicate the presence of any substance in their system, including medications prescribed to treat anxiety, attention deficit disorder, and other conditions. Moreover, many drug court judges prohibit participants from using agonist medication-assisted treatments for opioid addiction, such as methadone or suboxone. Judges reason that agonist treatments, which are administered daily and work in such a way that people may experience a mild high from the medication, are an addictive substance and simply replace one addiction for another. This insistence on abstinence and prohibition of medication-assisted treatment are inconsistent with now-prevailing understandings of effective addiction intervention, which support harm reduction instead of abstinence and the use of agonist treatments as part of the recovery process.

In contrast to their skepticism of agonist medications, many treatment court judges embrace the antiagonist medication-assisted treatment naltrexone — but not because it is more affordable or more effective. In fact, naltrexone, sold under the name Vivitrol, is significantly more expensive than agonist treatments, and experts have questioned its efficacy. One possible reason why this treatment has found a receptive audience with drug court judges is because of how it works. Unlike its agonist counterparts, which bind with the brain’s opioid receptors to curb cravings and reduce withdrawal symptoms, Vivitrol completely blocks opioids from reaching receptors in the brain, preventing an opioid-induced high. And Vivitrol, unlike suboxone or methadone, requires a full detox before it can be taken, and is administered monthly, not daily, which can assuage judges its use is not an addiction. One drug court judge in Ohio is so enthusiastic about this treatment method that he has created an even more specialized “Vivitrol Court.” And other treatment court judges authorize Vivitrol as the only medication-assisted treatment option, which has resulted in at least one complaint that such policies violate the Americans with Disabilities Act. Public health experts have cautioned that this championing of Vivitrol over other medications is based not on science but on ideology. These experts have suggested that judges may prefer Vivitrol because the way this drug is administered seems more consistent with principles of punishment.

Scientific research also reveals that some problem-solving courts are based on faulty assumptions about the connection between particular characteristics and criminal behavior. As Lea Johnston has revealed, the two foundational premises of mental health courts — namely that there is a strong causal connection between mental illness and criminal behavior and, therefore, that providing mental health treatment instead of incarceration will prevent future criminal activity — is “belied by scientific evidence.” Rather, a robust body of scientific research demonstrates that having a mental illness does not cause people to engage in criminal behavior and, in fact, people with mental illness who commit crimes “often simply exhibit the same risk factors — such as substance abuse, family problems, and antisocial tendencies” as other people who commit crimes.” Johnston concludes that “[i]t is these risk factors, not symptomatic mental illness, that directly contribute to criminal activity for a majority of individuals with mental illness.”

Finally, on a conceptual level, these specialized courts recirculate many of the same ideologies that fueled the rise of mass incarceration. The creation of these courts acknowledges that certain conditions or personal circumstances, such as substance addiction or mental illness, may make some people more vulnerable to criminal system involvement. Nevertheless, most specialized court models ultimately reify the notion of individualized responsibility that has animated many contemporary punitive practices. For example, the drug court model is based on the notion that the “problem” the courts should target is drug addiction — a condition intrinsic to the person who engages in behavior deemed criminal. Accordingly, this model places the onus on the individual to fix that problem through court-mandated treatment. In other words, the problem the courts want to solve is not with a criminal system that targets people who use drugs or harshly penalizes drug-related crimes. Responsibility for the harsh impact of drug laws remains squarely and solely on the shoulders of those who violate those laws, not on those who create and enforce them. Somewhat counterintuitively, however, the benefit that flows from those who successfully complete drug treatment is justified in systemic, not individual terms. As Jessica Eaglin has explored, drug courts are a type of “neorehabilitative” reform, which are reforms that are concerned with identifying and managing people who commit crimes “for the benefit of society, not the individual.”

Status courts, such as veterans courts and girls courts, depart from this framing slightly. These courts seek to address the way that past trauma resulting from external sources, such as military combat or sexual assault, contribute to current behavior and can render people vulnerable to criminal system involvement. Status courts aim to address the purportedly “unique needs” that stem from this trauma and provide a court process that acknowledges the dignity of court participants by treating them with empathy, respect, and honor.

The problem these courts attempt to solve, therefore, is the inhumane and careless treatment that a select few receive in the traditional system. However, by providing special treatment for some people based on a notion of desert, these courts, too, ultimately shore up the pathologies of the traditional system in a few key ways. First, their justificatory discourse supports the notion that those who do not fall into these select status groups — in other words, the vast majority of those whom the system targets — deserve the inhumane and dysfunctional treatment they receive. Moreover, the courts overlook the similarities between those they deem deserving of better treatment and those they exclude. For example, many young people who grow up in urban areas experience post-traumatic stress disorder at rates that match or surpass those of military veterans. This trauma, like that of military veterans, often stems from witnessing or being a victim of violence. And people of all genders experience sexual assault, and presumably most if not all who do experience trauma from those experiences. And yet, there has not been a robust effort to extend the status court model to include other populations that suffer from trauma.

Some of the limitations of the problem-solving court model I have just discussed could be solved or at least remediated. Courts could, for example, reduce or remove entry criteria that impede participation by people who could benefit most from an alternative punishment path, such as restrictions based on the severity of the charged offense or the individual’s past criminal record. And they could remove other barriers to entry such as those that require participants to pay for court participation and treatment programs. Such measures, especially if coupled with efforts to curb discretion over entry decisions, may also help reduce some of the established racial disparities in specialized court participation. Meanwhile, courts could be more proactive in incorporating new guidance from experts in public health, medicine, and related fields about effective interventions for addiction, mental illness, domestic violence, and the litany of other problems the courts purport to solve.

These reformist measures certainly would improve the administration of problem-solving courts. However, even if all of these suggested reforms were instituted, a fundamental problem would remain for those who are committed to meaningful decarceration and/or carceral abolition: Problem-solving courts ultimately reinforce the primacy and legitimacy of incarceration as punishment. Allegra McLeod has identified the range of reformist models that problem-solving courts draw on. She argues that the three prevailing models — therapeutic jurisprudence, judicial monitoring, and order maintenance — “pose a considerable risk of deepening and extending existing pathologies in criminal law administration, exacerbating overcriminalization and potentially expanding incarceration.” On this point, I agree. McLeod has expressed optimism that a fourth model for specialized courts — a decarceration model — could “facilitate broader transformative criminal law reform” and ultimately help “reduce reliance on criminal prosecution and incarceration as a way of regulating an array of complex social problems.” I do not share McLeod’s optimism for a number of reasons.

Despite their diversionary ideals, the authority of problem-solving courts depends on the ever-present threat of incarceration — regardless of whether that threat becomes a reality. The courts draw their power of “persuasion” from the prison itself and can and do frequently use that power. While “[t]he judge’s range of options for securing compliance with drug treatment or other requirements may range from hugs to jail . . . in the end, jail remains a viable sanction.” As problem-solving court judges readily admit, these institutions wield their carceral authority all the time. These courts are not, judges reassure skeptics, soft on crime. This intimate and inextricable relationship between problem-solving courts and incarceration reveals the impossibility of pursuing decarceration through this method of reform.

History casts further doubt on the ability of problem-solving courts to achieve decarceration. Problem-solving courts have entered their fourth decade and, as of yet, have not made an appreciable difference in recidivism rates. And history of other efforts at court specialization also provide a cautionary tale. For example, Jane Spinak has argued that the history of family court, which she identifies as the “paradigmatic problem-solving court,” should make us “cautious in our reliance on any court-based treatment solution,” and should lead us to look for community-based initiatives for treatment instead of court-based solutions. Specifically, Spinak has uncovered how family court status offender jurisdiction — intended to improve children’s lives through the provision of services — failed to achieve this goal and caused a range of unintended harms.

Certainly, problem-solving courts offer benefits for some people. Specialized courts provide a meaningful and impactful experience for some participants and help some avoid incarceration. And while the overall recidivism data regarding problem-solving court participation is inconsistent, data routinely show that the courts succeed on one metric: judicial happiness. And, as candidly acknowledged in a policy paper for the Conference of State Court Administrators, treatment courts come with a “[t]remendous public relations benefit.”

But these benefits come at a number of costs: not only the financial expense required to fund these expensive programs, but also the costs imposed on those who end up in the system for longer and those who are never able to access treatment programs. Meanwhile, the creation and operation of problem-solving courts create an illusion of progress that can provide reformers, politicians, and even academics with an illusory sense of progress that can alleviate the pressure to search for more effective and systemic reforms. In short: It is time to move beyond the problem-solving court model while retaining its experimentalist spirit. In the next part, I provide suggestions about what such experiments could look like.

Moving Forward: Alternatives to Problem-Solving Courts

For all of the reasons discussed above, it is time to look for alternatives to this alternative to incarceration scheme as a mechanism for service provision, while holding fast to the insight that we cannot punish our way out of a criminalization crisis. This section considers alternative models both within and beyond the criminal system itself.

Beyond Criminal Courts

Prosecutor-led diversion programs, which allow prosecutors to divert people arrested for certain offenses into treatment instead of instituting official charges, share many similarities with problem-solving courts. Like specialized courts, these programs generally require that the participant admit guilt before entering a mandatory treatment program and threaten the participant with traditional sanctions if they do not adhere to the program. And prosecutor-led diversion programs, like specialized courts, may widen the net of the criminal system by capturing some people for participation who would otherwise have escaped criminal sanction altogether while keeping others in the system longer than they would have been under a traditional punishment approach. A key difference is that the entity wielding the threat of incarceration to “encourage” treatment is a prosecutor, not a judge, and the diversion attempt occurs before formal adjudication of the charge.

Another model empowers law enforcement officers to refer people to drug or mental health treatment services instead of arresting them for certain low-level crimes. Some of these programs feature crisis intervention teams, which are collaborative efforts by law enforcement and community-based mental health service providers to intervene with services and support instead of arrest when someone is experiencing a mental health crisis. Other programs allow law enforcement to “deflect” people suspected of drug-related crimes to treatment instead of arresting them. The law-enforcement models improve on some of the shortcomings of prosecutor-led diversion. For example, participation in the deflection programs may be less coercive, as individuals are not required to admit guilt to any crime in order to access services. Moreover, those who are deflected into treatment may avoid the stigma and burdens that accompany arrest or conviction.

Both prosecutor and law-enforcement models have some advantages over specialized courts. For example, both approaches better incorporate advice from public health experts that diversion to treatment services should occur as early in the criminal process as possible. According to the sequential intercept model, which is a “conceptual model based on public health principles [that] has emerged to address the interface between the criminal justice and mental health systems,” supportive treatment services should be offered at the earliest possible “intercept point.” The model envisions five moments of interception during the criminal system process at which individuals can be provided treatment instead of “entering or penetrating deeper” into the system, as follows: arrest and emergency services (Intercept 1); initial detention and hearings (Intercept 2); jails and courts (Intercept 3); reentry from incarceration (Intercept 4); and community corrections (Intercept 5). The law enforcement and prosecutor-based programs occur at Intercepts 1 and 2, respectively, while specialized court programs do not begin until Intercept 3. Presumably, then, the earlier interception carries greater potential to avoid some of the harms of criminal system involvement.

But both models have fundamental shortcomings. First, and perhaps most problematically, both approaches — like problem-solving courts — position criminal system actors as gatekeepers to treatment services, services that are in short supply and often inaccessible independent of the criminal system. This linkage between criminal system actors and services continues to imbue treatment with the specter of carceral consequences for failure to complete treatment. This threat — real or imagined — will necessarily deter participation by those who are skeptical of the criminal system and wary of promises that they will not be arrested, prosecuted, or punished. For example, in a program the Los Angeles Police Department recently launched, nearly three-quarters of the 283 eligible people chose not to participate, and only 17 had completed the program.

A primary justification for locating this gate-keeping role in the criminal system is to coerce people into treatment; the coercion that accompanies threat of incarceration is needed, the argument goes, to persuade people who are otherwise reluctant or unwilling to enter treatment.

This argument is unpersuasive for a few reasons. Coerced treatment — specifically, the requirement that people enroll in drug treatment as a condition imposed by a criminal court — is a “fiercely debated topic in addiction”: Many expert organizations, including projects with the United Nations, consider it harmful, while others, including the National Institute of Drug Abuse, claim “treatment need not be voluntary to be effective.” Some studies have found that coerced treatment is as effective as treatment that is entered into voluntarily, while others have found that some types of coerced treatment are “associated with worsened treatment outcomes and increased criminal activity” and that the impact of mandated treatment is not long-lasting. In any event, even those studies that show similar outcomes between coerced and voluntary treatment cannot and do not prove that coerced treatment is the best way to provide treatment — because that is not the question the researchers have asked.

Positioning criminal system actors as treatment gatekeepers has another significant downside. While prosecutor diversion and law enforcement deflection models change the identity of the diversion decision-maker, they do not resolve the problems that arise when we ask system actors to adopt new roles and responsibilities as treatment advocates or managers, roles that conflict with their traditional powers. Furthermore, each of these models involves discretionary decisions by prosecutors and law enforcement to divert people to treatment, decisions that will remain deeply susceptible to racial bias. And by positioning criminal system actors as service gatekeepers, these models, like problem-solving courts, require dedicating more money to criminal system actors and programs — money that will further cement the criminal system as a primary provider of much-needed social services.

These system-based diversion approaches are also inherently limited in their view of who is eligible for treatment and under what conditions, because they allow diversion only for people suspected of activity that is deemed sufficiently nonserious, like low-level drug or property crimes, and who are deemed sufficiently low-risk, as evidenced by a limited criminal history record.

For all of these reasons, it is time to look beyond not just problem-solving courts, but also the criminal system in its entirety.

Beyond the Criminal System

The problem-solving court movement emerged as an experiment in helping people avoid future contact with the criminal system by providing them with access to treatment and other supportive services. Another robust contemporary movement — carceral abolition — shares this experimentalist spirit, the goal of providing people with the services and support they need to thrive, and a vision for the future in which interactions with criminal system are minimized or nonexistent. But abolitionist principles provide a different conceptualization of the problem that causes criminalization and a vision for the future that is distinct from that embraced by the problem-solving court movement. These differences reveal strategies for achieving this shared goal in ways that can avoid the pitfalls of criminal system-centered approaches.

The system-based approaches discussed above reflect an assumption that criminal behavior results from an issue intrinsic to the individual suspected of such behavior, such as addiction or mental health issues, and focus on providing substance use and mental health treatment, accordingly. Given this narrow conceptualization of the problem that causes criminalization, these approaches are incapable of addressing the systemic factors that render people vulnerable to criminal system involvement, such as structural racism, underfunded education systems, and inadequate housing and healthcare. Some will inevitably point out that systemic change is not the intended point of these reforms, and that is true. But for those who want to move beyond reforms that tinker at the edge of a deeply rotten system, and toward changes that transform the system, a different vision for reform is necessary. Carceral abolition provides that guiding vision.

Carceral abolition is, as Mariame Kaba has explained, “about making things as much as it is about dismantling.” Abolition is a praxis and ideological framework that encourages the dismantling of the carceral state through the creation of a world in which prison and all of its manifestations are simply unnecessary. It seeks to do this through the building of new structures and responses to harm. A central tenant of an abolitionist approach is to decouple care from carcerality — in other words, to create systems for preventing and responding to harm while providing people with the support they need to thrive, all of which occur independently of the criminal system and outside of the shadow of carceral sanctions.

For abolitionists, the problem that must be addressed is not with the people who enter and reenter the system. Rather, abolitionists focus on the way the system and its many actors repeatedly target the same people and communities for arrest and prosecution while simultaneously creating conditions that leave people particularly vulnerable to state surveillance and intervention, such as lack of meaningful education and employment opportunities and housing instability. And this conceptual shift leads to a very different, and much more expansive, reform agenda: a demand to change the system itself. Throughout, abolition works with an acknowledgment that some of these experiments may not lead where we want, but insist that a fear of failure should not stop us from trying.

With regard to access to drug treatment, mental healthcare, and other life-sustaining services, however, abolitionist principles do offer a unitary vision: Such services should be available to all who want them, independent of the criminal system. Instead of investing resources to train criminal system actors how to administer and oversee drug treatment, for example, abolition supports efforts to shift funding to community-based experts in substance use disorder who can offer services and treatment that are best for the individual — and not influenced by the expectations or limits of the criminal system. This decoupling of care from carcerality avoids the role confusion inherent in the system-based approaches.

That future is, of course, a ways away. But “one million experiments” in abolition are underway, united in the goal of working toward that future. These experiments intervene at many different sites, from education to violence interruption and community food programs. For example, Mental Health First (MH First), a community-based initiative that started in Sacramento, California, in 2019 aims to “interrupt and eliminate the need for law enforcement in mental health crisis first response by providing mobile peer support, de-escalation assistance, and nonpunitive and life-affirming interventions.” It seeks to intervene with people experiencing crisis without involving law enforcement “unless asked by mental health responders as a last resort.” If the police are already on the scene, the MH First team will advocate for providing the person in crisis with mental healthcare instead of jail.

Another abolition-inspired experiment emerged in response to a proposal to build a new, $3.5 billion “treatment facility” to replace Los Angeles County’s largest jail for men. A group of formerly incarcerated people, their families and communities, and other grassroots organizations and advocates united to create the JusticeLA Coalition to demand “Care, Not Cages.” JusticeLA not only successfully persuaded the L.A. County Board of Supervisors to abandon the plan for the new facility, but also to adopt a “care first” approach to responding to harm. The board commissioned an Alternatives to Incarceration work group, which included members of JusticeLA. The work group drafted a report identifying the need to expand community-based holistic care services, create decentralized coordinated service hubs where people can seek a spectrum of supportive services 24 hours a day, and support community-based harm reduction strategies for people with mental health and substance use disorders, including the prescription of psychiatric medications and medication-assisted treatment.

Abolitionist principles would also support funding efforts to address other needs that can leave people vulnerable to criminal system targeting, such as safe and secure housing. The “housing first” model, for example, focuses on providing permanent supportive housing to people experiencing homelessness. Importantly, this model emphasizes that safe housing — not treatment — should be provided first, with very few barriers to entry, and then people should be given the opportunity to access other supportive services on a voluntary basis. It is thus a shift from the “treatment first” model that requires people to complete treatment programs or demonstrate abstinence from all substances before they are offered stable housing.

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The problem-solving court model emerged as a genuine experiment aimed at helping some people avoid the harms of traditional punishment. Now, more than 30 years later, it is time to admit that the experiment has not succeeded in achieving its goals for many and to acknowledge the ways in which this reform model itself can cause unintended harm. It is not time to give up on the experimentalist spirit, but rather to use it as inspiration to seek other ways of achieving these noble goals. Meanwhile, in the decades during which this particular experiment has been underway, it has become increasingly clear that the criminal system enacts deep and enduring harm on the people it targets and their communities. If we want to meaningfully address this problem, we must look for new solutions not just beyond problem-solving courts, but beyond the criminal system entirely.

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Erin R. Collins is a professor of law at the University of Richmond. Her scholarship critically examines popular criminal system reforms, such as specialized criminal courts, gender-responsive punishment practices, and actuarial sentencing, with a particular focus on how evidence-based, data-driven reforms can replicate systemic inequities and stall decarceration efforts.

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1. This article originally appeared in the Cardozo Journal of Conflict Resolution. See Erin Collins, Beyond Problem-Solving Courts, 25 Cardozo J. Conflict Resol. 229 (2023). It has been condensed — including removal of endnotes — for publication in Judicature. Please refer to the full article for further discussion as well as endnotes.