Guest blogger Dr Jane Donoghue, Director of the Centre for Crime, Law and Justice, discusses her new book Transforming Criminal Justice? Problem-Solving and Court Specialization
In my new book Transforming Criminal Justice? Problem-Solving and Court Specialization, I provide a comparative analysis of developments in problem-solving justice in the UK and US and I examine the prospects for ‘mainstreaming’ problem-solving into the criminal justice system in England.
The British government has, over the last few years, produced a number of key criminal justice publications advocating the use of greater problem-solving practices and innovations. In addition, the Magistrates’ Association (which is the organisation that represents the 23,500 magistrate judges who hear 97% of criminal cases in England and Wales) has published Reports setting out its support for ‘mainstreaming’ problem-solving practices into the magistrates’ court system.
While this would seem to suggest that there is both government and judicial support for embedding a problem-solving orientation into the criminal justice system in England, there are in fact some considerable challenges that we face in attempting to progress this approach. The book discusses some of the main overarching barriers that currently exist to the realisation of problem-solving objectives and therapeutic principles in the UK.
First, magistrates’ courts in England and Wales are ill equipped to achieve problem-solving objectives/goals because at present, there is no formal system in place to ensure that an offender appears before the same judge for every court hearing related to their case. There is very little sentencer continuity and magistrates are not able to develop any meaningful working relationship with offenders, or with victims and witnesses who are also a key part of the problem-solving/TJ approach.
I argue that a formal system of court procedure should be implemented that allows judges to reserve or be automatically given cases which they have previously heard, in order to create consistency in the relationship between judge and offender. It is an important and necessary change that, if undertaken consistently in the lower court system in England, would provide one route to more systematically embedding problem-solving justice and TJ principles.
In addition, a significant barrier to local courts developing their own practices and rules has been the broader issue of court centralisation, which has made it much more difficult for judges to introduce effective practices into their own courts. In order for local courts to administer problem-solving justice effectively, magistrates must be empowered to introduce innovative new practices into their own courts: this has been virtually impossible for magistrates to undertake since the courts have been nationally administered following the implementation of the Courts Act 2003.
There is a clear incongruity between the government’s localism emphasis on the development of problem-solving justice in all magistrates’ courts – which relies upon the local delivery of solutions to neighbourhood crime problems – and the national administration of magistrates’ courts which creates fundamental barriers to the delivery of ‘local’ court justice. This contrasts starkly with the development of problem-solving practices in the US, where American judges have of course been instrumental in setting up specialist courts and other problem-solving practices. In England, we do not have the same situation here that actively enables this.
Encouragingly however, magistrates report that different manifestations of what they identify as ‘problem-solving practices’ are being used far more than they were ten years ago in England but they observe that these types of innovative practices are limited by the resources of probation and other agencies, as well as the significant cost implications. What is viewed as ‘problem-solving’ is widely interpreted by magistrates, and operates largely ad hoc. Unfortunately, magistrates also report that there is evidence that ‘even openly successful problem-solving courts are being shut or curtailed, without any consultation, and mostly due to cost, not effectiveness’.
Cost and efficiency are big problems for the courts in England: the emphasis on financial savings in the courts service is really problematic for the existence of problem-solving courts in particular. For example, the government recently took the decision to close the flagship North Liverpool Community Justice Centre (which was based on the Brooklyn Red Hook Community Centre). The Ministry of Justice argued that the Centre was expensive with a high operating cost and that there was no evidence that it delivered results on re-offending levels and so it did not deliver value for money for the taxpayer.
The government’s 2012 evaluation of the Centre maintained that ‘sufficient time has elapsed to establish working practices and develop the necessary working relationships within the NLCJC’. However, the study methodology used data that was less than two years old. This was clearly insufficient time; not only for substantive practices to be embedded and ameliorated but for measurable outcomes to be determined.
Moreover, the official studies of reconviction rates tell us far from the whole story about the operation of the NLCJC: not only in terms of additional community justice outcomes, but also with regard to the climate of fiscal austerity in which the Centre had to operate. Reductions in criminal justice budgets resulted in cuts to local treatment and support services for example, which were likely to have impacted upon recidivism levels.
The cost of problem-solving innovations remains a fundamental issue for government – and so, in the book I also look at other similar innovations that may be less resource intensive than problem-solving courts, such as Neighbourhood Justice Panels (NJPs) which are an important related criminal justice innovation with a realistic prospect of reducing resource demands on the police as well as potentially impacting upon rates of recidivism, particularly for low level repeat offenders.
In summary then, there has been significant interest from policy-makers and practitioners in the UK in problem-solving and therapeutic innovations and how we might move towards mainstreaming these type of approaches. However, this interest is danger of waning amid concerns about a) cost effectiveness, and b) how problem-solving/TJ would ‘fit’ within existing court processes/procedures. I argue that we must harness existing support within the courts and criminal justice system for new innovation and we must also commit to the production of targeted empirical evidence which evaluates the factors contributing to and limiting success.
The book concludes that mainstreaming problem-solving justice is a vital mechanism for providing historically marginalised defendants with greater voice in the justice process; and in reclaiming justice as a fundamental element of local neighbourhoods rather than central government.