Toward Democratic Governance of Problem-Solving Courts

For over a century, problem-solving courts have offered up the hope of reform to a justice system desperately in need of it.¹ Unlike traditional courts, problem-solving courts — such as drug courts or reentry courts — focus on a particular type of offense or defendant, often serving as an alternative to incarceration or adjudication. Many aim to provide expedited case processing, suspension of certain penalties, and professional treatment or other supports, in a collaborative environment.²

Proponents say that such courts can reduce recidivism while avoiding the immense costs associated with needless incarceration and criminal supervision. At the same time, critics pose questions about these courts’ efficacy and value. Do problem-solving courts work? If so, do they work better than less costly alternatives? If not, is it because problem-solving courts fail to identify the right “problem”?³

Despite the importance of these questions, they are rarely the subject of public debate and resolution. Sometimes, these questions are not even asked, as Richmond Law professor Erin Collins has noted in a recent law review article.⁴ And when the questions are asked, they are posed in places where the public does not participate — namely, in courthouse conference rooms, in the pages of academic publications, and on panels at professional conferences. To many, this approach may seem acceptable, given the widespread belief that problem-solving courts are a technical problem, one to be solved by judges, judicial administrators, or other experts on crime and courts.⁵ But the public has a role to play in problem-solving courts, too. And the U.S. Sentencing Commission, perhaps surprisingly, is well-suited to provide that democratic element.

What’s Missing From the Governance of Problem-Solving Courts?

Questions of governance are variations of “who decides.”⁶ Here, then, the questions are: Who chooses the goals of problem-solving courts? Who says how those goals should be met? Who determines when such courts are worth establishing, maintaining, changing, or ending?

The precise answer to all these questions is the same: It depends. As Cardozo Law professor Michael Pollack described in a recent law review article, “who decides” varies across different kinds of courts, with drug courts being governed in different ways than mental health courts.⁷ And “who decides” is rarely the same across jurisdictions, with reentry courts in Indiana being governed differently than their counterparts in New York (and at the federal level). For some courts in some places, legislatures play a role in governing problem-solving courts — though that role is frequently minimal and “leaves much to the courts.”⁸ For other courts in other places, centralized judicial policymaking bodies play a more significant role. In general, however, what has spurred the development, set the standards, and monitored the effectiveness of problem-solving courts is a coalition led by the individual judges and probation officers, the Department of Justice and its state-level equivalents, nonprofits like All Rise (previously known as the National Association of Drug Court Professionals), and prominent academics.⁹

When we look at the governance structures for problem-solving courts, we see many of the voices who should have a say. Judges, prosecutors, and probation officers all have their lives affected by the presence (or absence) of problem-solving courts. They all play critical roles in the success (or failure) of those courts, as well as those courts’ alternatives. It is essential that these stakeholders be a part of the “who” in “who decides.” And it is just as essential for those perspectives to be informed by the expertise of law professors, criminologists, social workers, and researchers whose contributions to the debate over problem-solving courts have been so valuable.¹⁰

Diverse as it is, the array of perspectives governing problem-solving courts is missing something. Perhaps most obviously, it is missing the perspective of the public — that is, the entire polity of the relevant jurisdiction. Problem-solving courts are rarely the subject of comprehensive legislation passed by representatives of that public, let alone referenda that directly communicate that public’s views.¹¹

An easy response to the absence of the public in governance over problem-solving courts is that if such governance is a technical matter, then the exclusion of the inexpert public from governance is a positive, rather than a negative. And as many have argued, the fates of people who have committed crimes should not be decided by those most vulnerable to the pressures of “punitive populism” — that is, those voting either in the ballot box or on the floor of a legislature.¹²

Ignorance, bias, and impulse have no place in the criminal justice system. Yet it is a mistake to assume the public’s perspective is an ignorant, biased, and impulsive one — or, by the same token, to assume that the “expert” perspective lacks such traits. Time and again, experiments in democratic governance have shown that, when given the right tools and resources, ordinary people can tackle the hardest questions of governance.¹³

In doing so, they bring to those questions something that rule by the so-called “best and brightest” cannot: the inherent value of self-government, something we as Americans cherish above all else. The question, then, is not whether the broader public — seen as those who bear the broader costs of both crime and incarceration — can or should play a central role in governing problem-solving courts. The question is whether an environment can be created for them to do so effectively.¹⁴

Before we address that question, another is worth taking up. For there is something to the idea that “rule by everyone” is not quite democracy, that giving each person an equal vote doesn’t always add up to self-rule. Not all public problems affect each member of the public equally. When a problem affects one group far more than others, there’s good reason to ensure that that group plays a particularly central role in deciding how that problem should be addressed.¹⁵

As we have seen, the governance of problem-solving courts already reflects this fact, with judges, prosecutors, probation officers, and other members of problem-solving teams having seats at the table of who decides. So, of those disproportionately affected by problem-solving courts, who is not currently at the table? The answer, ironically, is the people whose problems courts aim to solve.

Individuals who have been arrested, prosecuted, incarcerated, or supervised are typically absent from the list of those who lead the nonprofits, author the publications, and attend the conferences that shape problem-solving courts. Indeed, many cannot even vote, let alone serve as judges or lawyers or other criminal justice and licensed professionals. Yet these people care the most about the questions of problem-solving courts, given that the answers involve their recovery, their flourishing, and their freedom.

If we are committed to deciding the questions of problem-solving courts democratically, the challenge is therefore twofold. The broader public must sit at the table of “who decides.” And at that table, a central seat must be reserved for those who have faced arrest, prosecution, incarceration, and supervision — especially those who have participated in problem-solving courts.

It is heartening to see formerly incarcerated people leading the way in this mission of democratization. Through organizations like REFORM Alliance, these individuals are ensuring their voice is heard in debates about how courts can help solve the problems they face.¹⁶ Yet new advocacy organizations are just one piece of the puzzle. Proponents and critics of problem-solving courts who care about democracy must seek out all the missing pieces — including those that require some reimagining of existing tools.

What Can Sentencing Commissions Do for Problem-Solving Courts?

One tool for promoting democratic governance of problem-solving courts should be obvious: legislatures. Michael Pollack persuasively argues that problem-solving courts should be governed by “people in whose deliberations we can participate and whom we can ultimately vote out of office.”¹⁷ Pollack believes those people are legislators, who — unlike judges sitting in courts — serve in institutions that have a “capacity to effectively hear from and take on board a range of voices and expert advice.”¹⁸

Yet there is another institution that fits the bill — though its “democratic” nature might come as a surprise: sentencing commissions. True, sentencing commissions have long been touted as a bulwark against the excesses of democracy, as expert bodies that can shelter criminal law from the ill winds of punitive populism (though much debate remains over whether such insulation has been effective). And there is a widely shared assumption that, whatever their merits, sentencing commissions are — and must be — tools of technocracy, rather than self-government.¹⁹ That view is likely reinforced by the fact that sentencing commissions are well-constructed to gather data, conduct research, and assess the latest social science regarding criminal justice.

But that is not all these organizations can do. Like any other administrative agency, the function of a sentencing commission is flexible, determined in large part by its norms, rules, and personnel. That internal structure can be oriented toward bureaucratic insularity. But it can also be oriented toward democratic horizons.²⁰

Consider the U.S. Sentencing Commission’s recent work. It has unveiled a new comment portal that makes it remarkably easy for members of the public to provide input on the agency’s work.²¹ It has asked the public to comment not only on proposed rules, but also to say what rules should be proposed in the first place (and, notably, to say what the agency should study).²² And it has committed to translating the public’s priorities into concrete policy changes.²³

Beyond inviting the public to the table, the Commission has moved to give a seat to some of those most affected by its work. The agency has built a new digital channel to receive feedback from currently incarcerated people. It has solicited public testimony from panels of formerly incarcerated people during each of its last two policymaking cycles. During its current policymaking cycle, it invited those people to participate in a roundtable on supervised release.

It is impossible to overstate how beneficial and influential this expansion of “who decides” has been. The increase in numerosity and diversity of public feedback has led to policies with broader support, deeper impact, and more nuanced reasoning. The input of formerly incarcerated people has challenged old assumptions, provided new expertise, and forced policymaking to attend to all the costs of incarceration. (For even greater proof of the benefits of such input, look to sentencing commissions like Minnesota’s, on which previously convicted people serve as commissioners).²⁴

These changes come at a time when the Commission is being asked to look more closely at problem-solving courts. And it makes sense for the Commission to do so. Congress tasked the Commission with “measuring the degree to which [federal] sentencing, penal, and correctional practices are effective in meeting the purposes of sentencing.”²⁵ Participation in problem-solving courts, which comes as part of (or in lieu of) a sentence, is one of those practices.²⁶

The agency’s latest work on this issue has focused on information gathering. The fruits of those labors are reflected in a one-of-a-kind digital resource that presents aggregate data on the character, practices, and dispersion of federal problem-solving courts. Notably, the Commission elected to make this a public resource, something that aims to facilitate open dialogue among all people about the questions posed by problem-solving courts.²⁷

What all this proves is that sentencing commissions can provide expertise in service of, rather than in substitute for, democratic governance of problem-solving courts. And it suggests that decision-making about governance could be made by sentencing commissions. When legislatively equipped with a voice that can speak on problem-solving courts — and internally structured to ensure that voice comes from a table that seats all the people in “We the People” — sentencing commissions can provide governance that is both expert and democratic.

Whether sentencing commissions (and other entities) will actually provide such governance is another story. But it is a story that we can all help write. Those participating in the discourse over problem-solving courts have, through their advocacy and their critiques, done so much to create progress in our criminal justice system. If their power is directed toward building democratic governance of problem-solving courts, including through the reframing and restructuring of sentencing commissions, there is no telling what further progress they may achieve.

Carlton W. Reeves serves as both United States district judge for the Southern District of Mississippi and as chair of the United States Sentencing Commission. 

Con Reynolds is executive assistant and counsel to the chair at the United States Sentencing Commission.

1. The views expressed in this piece do not represent those of the United States Sentencing Commission.
2. National Institute of Justice, Problem-Solving Courts (Feb. 20, 2020) https://nij.ojp.gov/topics/articles/problem-solving-courts.
3. See generally Erin R. Collins, The Problem of Problem-Solving Courts, 54 U.C. Davis L. Rev. 1573 (2020) (posing many of these questions and citing others who do so).
4. Erin R. Collins, Problem-Solving Courts and the Outcome Oversight Gap, 92 UMKC L. Rev. 533, 534 (2024) (“Despite recent state efforts to govern and standardize how [problem-solving] courts operate, there remains virtually no consistent or meaningful oversight of problem-solving court outcomes.”).
5. See Michael C. Pollack, Legislating Courts, 92 UMKC L. Rev. 613, 622 (2024).
6. See Peter G. Klein et al., Organizational Governance Adaptation: Who Is In, Who Is Out, and Who Gets What, 44 Acad. of Mgmt. Rev. 6 (2019).
7. See generally Pollack, supra note 5, at 614–22.
8. Id. at 619.
9. See generally Collins, supra note 4, at 535–42.
10. See Bruce J. Winick, Therapeutic Jurisprudence and Problem Solving Courts, 30 Fordham Urb. L.J. 1055, 1060–61 (2003) (describing the “collaborative, interdisciplinary approach” taken by judges in problem-solving courts).
11. See Pollack, supra note 5, at 614–22.
12. See Rachel Elise Barkow, Prisoners of Politics: Breaking The Cycle of Mass Incarceration 1–2 (2019) (arguing for the creation of unelected administrative institutions to determine criminal justice policy, as opposed to criminal justice policy being determined by voters and elected officials).
13. John G. Matsusaka, Let the People Rule: How Direct Democracy Can Meet the Populist Challenge (2020) (describing successful uses of public referenda throughout the world on key political issues in Africa, Asia, Europe, North America, and South America).
14. Id.
15. David R.H. Moscrop & Mark E. Warren, When Is Deliberation Democratic?, 12 J. of Deliberative Democracy 1, 4–8 (2016).
16. For more on this unique organization, see Reform Alliance, https://reformalliance.com/ (last visited Jan. 8, 2025).
17. Pollack, supra note 5, at 622.
18. Id. at 631; see also Collins, supra note 4, at 548 (concurring with Pollack’s argument).
19. Barkow, supra note 12, at 10–11.
20. See generally Dwight Waldo, Development of Theory of Democratic Administration, 46 Am. Pol. Sci. Rev. 81 (1952) (detailing the debate among public administration scholars about the ability of administrative bodies to promote or stifle democracy).
21. U.S. Sent’g Comm’n, Submit Comment, https://comment.ussc.gov/.
22. U.S. Sent’g Comm’n, Proposed Priorities for Amendment Cycle, 89 Fed. Reg. 48029 (Jun. 4, 2024).
23. U.S. Sent’g Comm’n, Final Priorities for Amendment Cycle, 89 Fed. Reg. 66176 (Aug. 14, 2024).
24. Minn. Stat. 224.09 (2024) (requiring that at least one member of the Minnesota Sentencing Commission “be a person who has been formerly convicted of and discharged from a felony-level sentence.”).
25. 18 U.S.C. § 991(b)(2).
26. Collins, supra note 3, at 1628.
27. U.S. Sent’g Comm’n, Problem-Solving Courts, https://www.ussc.gov/education/problem-solving-court-resources.