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An Idea Whose Time Is Coming


Monday, Dec. 24, 2001

The nature of the legal profession is changing. In the old ideal, lawyers were independent counselors to whom clients turned for sage advice and highly specialized talents. To be sure, even in its heyday, the old ideal, embodied by the character of Atticus Finch in To Kill A Mockingbird, competed with other, uglier stereotypes of lawyers. But the ideal approximated the profession's highest aspirations. Today it is a relic.

Increasingly, lawyers deploy generalized problem-solving skills in collaboration across disciplinary boundaries with accountants, management consultants, and other professionals. This transformation has been largely ignored by the legal academy, which continues to train young lawyers by techniques pioneered in the nineteenth century - such as the case method and the Socratic method. Yet there is reason not only to adjust legal education to this new professional role, but also to be hopeful that the new conception of the profession will have substantial social benefits.

Consider, for example, one particularly unlikely development: the emergence of drug treatment courts and other "problem-solving courts." These courts operate according to the simple yet radical idea that the goal of adjudication should be to address the breakdown that brought the case to court in the first place, rather than simply to clear the dockets.

Drug Addiction and Crime

In most American urban centers, roughly three quarters of the people arrested by the police are either under the influence of illegal drugs or have used illegal drugs in the recent past. That fact does not necessarily mitigate guilt. "I was high when I killed him" is no defense to murder.

However, for non-violent offenses such as drug possession, shoplifting, and "quality-of-life" crimes like prostitution or public urination, the statistics suggest that the standard approach - sentencing offenders to the time served in jail awaiting arraignment, or to that time plus a few additional days in jail - is unlikely to be effective. Someone who is stealing to support a drug habit, or urinating in the street because his addiction prevents him from holding a job and therefore from being able to afford his own toilet, will typically continue to engage in these behaviors so long as he remains an addict.

The obvious solution is drug treatment, which studies show to be much more cost-effective than shuttling addicts from the streets to arrest to court to jail and then back to the streets. But even if drug treatment is effective, isn't it precluded by the war on drugs? The answer, surprisingly, is no.

The Advent and Approach of Drug Treatment Courts

Beginning in 1989, throughout the nation, cities, counties, and states have been operating "drug treatment courts" for non-violent offenders. In the typical treatment court, the defendant pleads guilty and accepts placement in a court-mandated program of drug treatment. Thereafter, the judge and court personnel closely monitor his performance in the program. The program provides regular status reports and "clients," as offenders are called, must return periodically to be evaluated in open court.

Drug treatment courts may sound like a mushy idea, focusing on the "root causes" of public disorder. Yet not only bleeding-heart liberals, but also tough-minded conservatives have embraced these courts, because the ethos of drug treatment requires addicts to accept individual responsibility for their recovery.

Thus, failures are punished according to a strict schedule of graduated penalties, ranging from the requirement of writing an essay to time in jail. However, drug treatment courts expect that most addicts will relapse one or more times before finally kicking the habit, and so punishment serves the purpose of negative reinforcement, which is combined with positive reinforcement for successful achievement of various milestones. Clients who succeed in drug treatment and remain drug-free for a sustained period "graduate" in a ceremony in open court, receiving congratulations from the judge and applause from the audience.

Perhaps counter-intuitively, the most comprehensive study of the subject found that clients who were ordered to drug treatment by a judge were more likely to complete the program successfully than those who volunteered for treatment. This finding suggests that the drug treatment court really is a useful innovation; it is not merely a second-best substitute for a system of drug treatment completely outside the criminal justice system (although nothing in the study precludes making such treatment generally available as well).

New, Less Adversarial Roles for Attorneys in Drug Treatment Courts

Drug treatment courts result in a dramatic transformation in the roles played by attorneys. Instead of thinking about how to win a case in competition with one another, prosecutors and defense attorneys, together with the judge, work as a team to pursue a path that is in the best interest of the defendant.

For lawyers trained in the virtues of the adversary system, this experience can be unsettling. Defense attorneys understandably worry that they are "selling out" their clients' interests. The cognitive dissonance can be particularly acute when there is a plausible defense available.

For example, suppose that the police searched a defendant in violation of the Fourth Amendment. Should the defense attorney raise that objection and return her client to the streets, or should she try to convince the client that he will be better off pleading guilty and receiving drug treatment?

In this example, the legal argument relates only to police conduct, not to the defendant's guilt or innocence, so there would be nothing dishonest about the defendant pleading guilty. And yet, defense attorneys are socialized to think of their job as helping the defendant "get off," just as prosecutors are socialized to think of their job as locking up the "bad guys." Drug treatment courts require those who work in them to think about their roles in different terms. Many defendants are not "bad," although they do need help, and "getting off" may actually be harmful to a defendant, given the effectiveness of court-mandated drug treatment.

Nor are the role changes confined to how lawyers interact with one another. There are also large shifts in the scope of the lawyer's job. For a drug treatment court team to be successful requires little in the way of traditional courtroom skills.

Instead, attorneys need to be able to think creatively about social problems and social services - because drug addiction is often the tip of an iceberg that includes some combination of unemployment, domestic violence, homelessness, and other mental and physical illnesses. That means that attorneys must work hand in hand with social workers, doctors, and other professionals. The master skill is collaborative problem solving rather than argument.

Drug Treatment Courts: Not Just an Experimental Alternative

Assisted by a federal grant program, today there are over 500 drug treatment courts in 47 states around the country. Yet despite these numbers, drug treatment courts continue to be seen largely as an "alternative" to traditional courts.

That may soon change. In New York, for example, the state's chief judge has unveiled a plan to implement drug treatment courts on a statewide basis.

Moreover, the concept has spread beyond drug treatment. The preliminary successes of drug treatment courts have led thoughtful professionals like the lawyers and researchers at the Center for Court Innovation to ask whether the model can be applied more generally. Already, problem-oriented specialized courts around the country have developed to address such issues as domestic violence, family breakdown, mental illness, gun violence, and more.

Recently, such mainstream organizations as the American Bar Association and the Conference of Chief Justices have endorsed problem-solving courts. If such courts continue to enjoy success - and given the changes in law firm practice noted above - it is only a matter of time before they prompt a wholesale reexamination of what it means to be a lawyer.

There will always be a place for Atticus Finch and Perry Mason in the profession, but in time, we may come to see them as the exceptions to the archetypal lawyer as problem solver.

Michael C. Dorf is Vice Dean and Professor of Law at Columbia University.

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