Why defenders feel defensive: The defender's role in problem-solving courts

American Criminal Law Review

Volumn 40, Issue 4, 2003, Pages 1617-1623

  Spinak, Jane M ^a  

^a The Earth Institute at Columbia University   (United States)

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[No Author keywords available]

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EID: 2442454831     PISSN: 01640364     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Note

References (42)

1. The Dade County, Florida drug court began in 1989, ninety years after the oldest version of a problem-solving court in the United States - the Juvenile Court - was founded. See Arie Freiberg, Problem Solving Courts: Innovative Solutions to Intractable Problem?, 11 J. JUDICIAL ADMIN. 8, 12 (2001).
2. See, for example, the National Council of Juvenile and Family Court Judges (NCJFCJ) Permanency Planning for Children Department's "Model Court Project," at http://www.pppncjfcj.org/index.html (last visited Nov. 18, 2003). The Department's mission is "[t]o provide an environment for change by supporting and facilitating dependency court teams and by providing education and technical assistance to enable courts nationwide to meet their goals to improve practice in child abuse and neglect cases." Id.
3. By Fall 2002, over 1,200 drug courts were operating or being developed. Aubrey Fox & Greg Berman, Going to Scale: A Conversation About the Future of Drug Courts, 39 COURT REV. 4, 4 (2002).
4. I will mostly use the term "defender" when writing about the attorneys who practice in problem-solving courts. The term should be viewed broadly to apply to lawyers representing criminal defendants, juvenile respondents, adults and children in child welfare proceedings.
5. See James Nolan's description of the current criminal justice system in the first paragraph of his article for this symposium issue. James L. Nolan, Jr., Redefining Criminal Courts: Problem-Solving and the Meaning of Justice, 40 AM. CRIM. L. REV. 1541, 1541 (2004). Family Court has had similar discouraging descriptions. See Jane M. Spinak, Adding Value to Families: The Potential of Model Family Courts, 2002 WIS. L. REV. 331, 355-358 (2002).
6. See James Nolan's description of the current criminal justice system in the first paragraph of his article for this symposium issue. James L. Nolan, Jr., Redefining Criminal Courts: Problem-Solving and the Meaning of Justice, 40 AM. CRIM. L. REV. 1541, 1541 (2004). Family Court has had similar discouraging descriptions. See Jane M. Spinak, Adding Value to Families: The Potential of Model Family Courts, 2002 WIS. L. REV. 331, 355-358 (2002).
7. See Martin Guggenheim, Commentary, The Foster Care Dilemma and What to Do About It: Is the Problem That Too Many Children Are Not Being Adopted out of Foster Care or That Too Many Children Are Entering Foster Care?, 2 U. PA. J. CONST. L. 141, 144-45 (1999); Randolf Stone, Race and Imprisonment, 7 U. Chi. L. Sch. Roundtable 127, 127-28 (2000).
8. See Martin Guggenheim, Commentary, The Foster Care Dilemma and What to Do About It: Is the Problem That Too Many Children Are Not Being Adopted out of Foster Care or That Too Many Children Are Entering Foster Care?, 2 U. PA. J. CONST. L. 141, 144-45 (1999); Randolf Stone, Race and Imprisonment, 7 U. Chi. L. Sch. Roundtable 127, 127-28 (2000).
9. See New York County Lawyer's Ass'n. v. New York, 763 N.Y.S.2d 397, 399-400 (N.Y. Gen. Term 2003). The court noted that failure to increase the rates paid to assigned private counsel, to abolish the arbitrary distinction between the rates paid for in-court and out-of-court work, and to remove the caps on total per case compensation has created a severe and unacceptably high risk that children and indigent adults are receiving inadequate legal representation in New York City in violation of the New York and United States Constitutions. Id. at 400-404.
10. Id. at 399.
11. Judith S. Kaye, Strategies and Need for Systems Change: Improving Court Practice for the Millennium, 38 FAM. & CONCILIATIONS COURT REV. 159 (2000).
12. William G. Meyer & A. William Ritter, Drug Courts Work, 14 FED. SENT. REP. 179, 179 (2002), available at 2002 WL 31308058.
13. William H. Simon, Criminal Defenders and Community Justice: The Drug Court Example, 40 AM. CRIM. L. REV. 1595, 1597 (2004).
14. Id. at 1605.
15. Mae C. Quinn, Whose Team Am I On Anyway? Musings of a Public Defender About Drug Treatment Court Practice, 26 N.Y.U. REV. L. & SOC. CHANGE 37, 57-58 (2000-2001).
16. See New York County Lawyer's Ass'n., for an example of how the current system is underfunded. 763 N.Y.S.2d at 399-400.
17. Anthony C. Thompson, Courting Disorder: Some Thoughts on Community Courts, 10 WASH. U. J. L. & POL'Y 63, 94-96 (2002).
18. Anne H. Geraghty & Wallace J. Mlyniec, Unified Family Courts: Tempering Enthusiasm with Caution, 40 FAM. CT. REV. 435, 444 (2002).
19. Kim Taylor-Thompson, Individual Actor v. Institutional Player: Alternating Visions of the Public Defender, 84 GEO. L. J. 2419, 2420-2422 (1996); see also Jane M. Spinak, The Role of Strategic Management Planning in Improving the Representation of Clients: A Child Advocacy Example, 34 FAM. L. Q. 497, 517-526 (2000).
20. Kim Taylor-Thompson, Individual Actor v. Institutional Player: Alternating Visions of the Public Defender, 84 GEO. L. J. 2419, 2420-2422 (1996); see also Jane M. Spinak, The Role of Strategic Management Planning in Improving the Representation of Clients: A Child Advocacy Example, 34 FAM. L. Q. 497, 517-526 (2000).
21. As these courts mature, there is increased information about their functioning that may also exacerbate disagreements. Compare Meyer & Witter, supra note 10, with the comments of Judge Morris Hoffman regarding disbanding the drug courts in Denver, Morris B. Hoffman, A Neo-Retributionist Concurs with Professor Nolan, 40 AM. CRIM. L. REV. 1567 (2004).
22. Robert Victor Wolf, Fixing Families:The Story of the Manhattan Family Treatment Court, 2 J. CTR. FOR FAM. CHILD. & CTS. 5, 13-15 (2000); see also STEVEN BELENKO, NAT'L CTR. ADDICTION AND SUBSTANCE ABUSE, RESEARCH ON DRUG COURTS: A CRITICAL REVIEW 2001 UPDATE 25 (2001) (commenting on clients' feeling respected by the judges in the Erie County, Ohio drug court).
23. Robert Victor Wolf, Fixing Families:The Story of the Manhattan Family Treatment Court, 2 J. CTR. FOR FAM. CHILD. & CTS. 5, 13-15 (2000); see also STEVEN BELENKO, NAT'L CTR. ADDICTION AND SUBSTANCE ABUSE, RESEARCH ON DRUG COURTS: A CRITICAL REVIEW 2001 UPDATE 25 (2001) (commenting on clients' feeling respected by the judges in the Erie County, Ohio drug court).
24. Quinn, supra note 13, at 62.
25. Candace McCoy, in her symposium article, provides another in describing the complex history of determinate sentencing. See generally Candace McCoy, The Politics of Problem-Solving: An Overview of the Origins and Development of Therapeutic Courts, 40 AM. CRIM. L. REV. 1513 (2004).
26. Wendy N. Davis, Special Problems for Specialty Courts, 89 A.B.A. J. 32, 36 (2003).
27. Simon, supra note 11, at 1598.
28. Michael C. Dorf & Charles F. Sabel, Drug Treatment Courts and Emergent Experimentalist Government, 53 VAND. L. REV. 831, 834 (2000)
29. Simon, supra note 11, at 1599. Simon later is less categorical when he states, "Clearly, there is an important role for defense lawyers to play in this debate, both case-by-case and in discussions of general rules." Id. at 1601.
30. Simon, supra note 11, at 1599. Simon later is less categorical when he states, "Clearly, there is an important role for defense lawyers to play in this debate, both case-by-case and in discussions of general rules." Id. at 1601.
31. Quinn, supra note 13, at 57, 61.
32. Simon, supra note 11, at 1599. I do not address here the confidentiality issue directly.
33. Quinn, supra note 13, at 56, 62-63.
34. Simon, supra note 11, at 1601, 1602. Simon does not even mention the other limitations that these clients frequently have, including histories of maltreatment, cognitive disabilities, limited education, and other socioeconomic disadvantages.
35. Simon, supra note 11, at 1602, 1603.
36. Simon, supra note 11, at 1603.
37. Defenders may approach their role differently if the court permits the client to submit to its jurisdiction without entering a plea, or if the court will only provide treatment or other services after acknowledging guilt. See Thompson, supra note 15, at 74, 81.
38. Quinn also notes that without increasing the funding for the defender organizations appearing in the treatment part, the defenders are unable to attend regularly. Quinn, supra note 13, at 63-69.
39. The best child advocates have learned to do this, and there are excellent examples of children's lawyers who describe the process. See JEAN KOH PETERS, REPRESENTING CHILDREN IN CHILD PROTECTIVE PROCEEDINGS: ETHICAL AND PRACTICAL DIMENSIONS (2d ed. 2001).
40. Elsewhere I have argued that the structure of problem-solving courts actually provides Family Court judges with greater capacity to protect parents' substantive due process rights in child welfare proceedings, thus justifying some relaxation of the procedural ones. Spinak, supra note 5, at 370-374.
41. See Sara P. Schechter, Family Court Case Conferencing and Post-Dispositional Training: Tools for Achieving Justice for Parents in the Child Welfare System, 70 FORDHAM L. REV. 427, 428, 430, 435 (2001); Wolfe, supra note 19, at 11, 19.
42. See Sara P. Schechter, Family Court Case Conferencing and Post-Dispositional Training: Tools for Achieving Justice for Parents in the Child Welfare System, 70 FORDHAM L. REV. 427, 428, 430, 435 (2001); Wolfe, supra note 19, at 11, 19.