The legal field justice system likes to collect statistics. Substantial legal scholarship is regularly published considering how and why and when people commit crimes, and critically, the how and why and when behind people repeatedly committing crimes. We give this concept fancy names like recidivism (def: the tendency of a convicted criminal to reoffend) and track statistics (like how within three years of release, two out of three people are rearrested and more than fifty percent are incarcerated again).[1] But identifying something as a problem and making steps towards solving the problem are two very different things.
So how do you begin to address a problem like high recidivism rates and failed probation sentences? Enter, the Problem-Solving Courts and a risk-need-response model.
Problem-Solving Courts first emerged as a part of the much bigger war on drugs in the last decades of the 20th century focused on substance use versus criminal behavior, generally. Problem-Solving courts were a front-end response to the revolving door of criminal sentencing and to provide an alternative to incarceration strongly focused on rehabilitation of offenders with significant substance use disorders. The risk-need-responsivity model behind the Problem-Solving Courts is premised upon three critical principles:
criminal behavior can be reliably predicted and treatment should focus on the higher risk offenders in order to match the level of service to the offender’s risk to re-offend;
criminogenic needs are critically important in the design and delivery of treatment; and
the treatment should be provided responsively and tailored to an individual’s learning style, motivation, abilities, and strengths, as well as specific demographic background and the many dimensions of diversity that may be included therein.[2]
The Denver Adult Drug or Treatment Court was the first in State of Colorado, implemented in 1994.[3] Since then, Problem-Solving Courts have grown in the state to include nearly eighty different courts across twenty judicial districts,[4] and have expanded to include programs specializing in mental health, juvenile drug use, veteran trauma, and family treatment.
To be clear, Problem-Solving Courts are not your standard judicial sentence. They seek to provide intensive and direct hands-on support to an individual as a judicial sentence from a multidisciplinary team to comprehensively addresses the underlying barriers to recovery or rehabilitation.
For example, it is not uncommon for a person who has been criminally charged with a DUI or drug related offense to also be struggling with a myriad of issues as result of their substance use disorder. In this scenario, substance use was a strong driving force behind the actions that caused the criminal conduct in the first place, such as substance use disorder preceding the conduct of driving while intoxicated and subsequently receiving a DUI charge, that it requires a different style of approach to prevent continued involvement within the judicial system.
A criminal sentence of a fine or a short period of incarceration—standing alone—does not provide the much-needed treatment for this underlying substance use disorder. Thus, the factors of this underlying condition that strongly contributed to the criminal offense is still alive and well, and the offender is likely to end up right back in the same situation again, where additional charges and sentences are imposed or probation is revoked. And this is what creates the revolving door effect.
A litany of other obstacles and challenges may be present for any particular individual caught up in the judicial system, including things like housing and food instability, difficulty obtaining employment, lack of transportation, unaddressed mental and physical health issues, and lack of community or family support.
Courts are in a distinctive position to meaningfully help people when they are at their lowest points. This is where Problem-Solving Courts really shine, as a system to remove those underlying obstacles a person is facing that go far beyond a singular act or particular involvement with the judicial system.
Although specifics vary between the different Problem-Solving Courts, the broad strokes are similar throughout Colorado.
Entry into the program is by referral. Potential candidates are often identified by the prosecutor or defense counsel in a case, although self-referrals are also allowed. Generally, eligible candidates for the program are individuals who are at a heightened risk to reoffend and have been screened eligible to be safely supervised in the community.
Access to treatment and the closer in time to the offense itself that an individual can start the program, the greater the likelihood of success will be.[5] As with so many things, unfortunately, time and space in the programs are limited commodities. More efficiently collecting referrals—and having the capacity for individuals to enter the program—are continuing goals for the Problem-Solving Courts because getting connected to treatment through the program is the cornerstone of what increases the likelihood of success.
An individual should expect to spend somewhere between twelve and eighteen months in a program, with adjustments based on personal progress or setbacks. The program itself requires a significant commitment from the participant. In addition to pleading guilty to the underlying charges (if applicable), program participants may be required to attend weekly meetings with their probation officer, undergo UA testing multiple times per week, as well as attend regular monthly meetings with the entire supervisory team.
Further, requirements like completing rehabilitation programs, parenting classes, or mental health services may be a part of the Problem-Solving Court process. Particular requirements change between the different courts and are modified to address a participant’s most pressing risk and responsivity needs.
The supervisory team is a critical component for each of the Problem-Solving Court programs, and, with some variation for the specific program, will be made up of members such as a supervising judge, prosecutor, defense counsel, case worker, and probation officer. In addition to providing additional accountability and motivation for the individuals in the program beyond what is seen in a typical probationary sentence, the team also helps participants connect with the needed resources that are already available in the community, such as helping an individual locate a transitional housing program and assisting with an application for food assistance benefits. The supervisory team also seeks to provide creative support and motivation for participants by being responsive to each participant’s individual and unique circumstances. The supervisory team prioritizes the participant as a unique person, and seeks the best ways to help each individual be successful.
Above all, Problem-Solving Courts strive not to cause any harm to participants.
For additional information about the Problem-Solving Courts, please see the Colorado Judicial Branch website at https://www.courts.state.co.us/Administration/Unit.cfm?Unit=prbsolcrt and the contact information provided for the county coordinator for each Problem-Solving Court. General inquiries can also be directed to the Statewide Problem-Solving Court Coordinator team at coloradoproblemsolvingcourts@judicial.state.co.us.
[1] https://www.healthypeople.gov/2020/topics-objectives/topic/social-determinants-health/interventions-resources/incarceration (citing to Awofeso N. Prisons as social determinants of hepatitis C virus and tuberculosis infections. Public Health Reports. 2010;125 Suppl 4:25–33; Langan PA, Levin DJ. Recidivism of prisoners released in 1994. Federal Sentencing Reporter. 2002;15(1):58–65.) [2] https://www.publicsafety.gc.ca/cnt/rsrcs/pblctns/rsk-nd-rspnsvty/index-en.aspx. [3] See https://www.courts.state.co.us/Administration/Custom.cfm?Unit=prbsolcrt&Page_ID=446. [4] https://www.courts.state.co.us/Administration/Unit.cfm?Unit=prbsolcrt. [5] http://www.cicad.oas.org/fortalecimiento_institucional/dtca/publications/Manual_Marlowe_ENG.pdf#page=52.
Marty Whalen Brown is a Staff Adjudicator at the Office of Appeals in the Colorado Department of Human Services. She holds a J.D. degree from the University of Colorado Law School and clerked at the Office of the Presiding Disciplinary Judge under the Colorado Supreme Court after graduating.