POLITICAL PHILOSOPHY AND COMMUNITY JUSTICE: A CRITICAL INTERSECTION EXAMINED TO AID IN THE REDUCTION OF RECIDIVISM by PHILIP D. WAGGONER B.A., Colorado State University, 2011 A thesis submitted to the Faculty of the Graduate School of the University of Colorado in partial fulfillment of the requirements for the degree of Master of Public Administration School of Public Affairs 2013
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This thesis for the Master of Public Administration degree by
Philip D. Waggoner
has been approved for the
Master of Public Administration Program
by
Paul Teske, Chair
Callie Rennison
Susan Opp
October 24, 2013
iii
Waggoner, Philip (MPA, Master of Public Administration)
Political Philosophy and Community Justice: A Critical Intersection Examined to Aid in the Reduction of Recidivism Thesis directed by Distinguished Professor Paul Teske
ABSTRACT
Political philosophy and criminal justice are fields which seemingly rarely mix.
While criminal justice is largely focused on the notion of practical, empirical
enforcement methods for creating a safer society at large, political philosophy typically
remains in the lofty realm of abstract thinking, virtually inaccessible to the lives of
individual citizens. However, a thorough examination of political philosophical thought
reveals multiple and strong strands of criminal justice theory. Even strong hints of the
relatively new notion of community justice can be found interwoven throughout the
entire tapestry of the political philosophical tradition, from Aristotle’s Nicomachean
Ethics to John Rawls’s A Theory of Justice. Why would such a relationship among
traditionally disparate disciplines be worth discovering and developing? This paper
addresses that question by demonstrating that in order for communities across the world
to accept and view the new notion of community justice as relevant, a framework that is
historically rich and practically cogent, as well as academically sound, must be
established in order to legitimize this new trajectory of executing justice in society. Thus,
in order to reduce and prevent crime, diminish recidivism and create overall safer
communities, a political philosophical approach to community justice must be pursued.
The form and content of this abstract are approved. I recommend its publication.
Approved: Paul Teske
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DEDICATION
I dedicate this work to my bride, Becky.
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ACKNOWLEDGMENTS
I would like to thank my outstanding committee for their guidance and expertise
in revising, editing, advising on and approval of my thesis as the final step in the Master
of Public Administration degree program. I would also like to thank the School of Public
Affairs and the Graduate School at the University of Colorado, Denver. Additionally, I
would like to thank Sean McCandless for his excellent revision and edits of my thesis.
And finally, I would like to thank my wife, Becky, for her tireless love, support and
encouragement throughout the process.
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TABLE OF CONTENTS
CHAPTER
I. INTRODUCTION .................................................................................................1
What is Community Justice? .................................................................................3
Why is Community Justice Worth Pursuing? .......................................................6
II. REVIEW OF THE LITERATURE ........................................................................9
Disparate Realms of Literature Explored ............................................................11
Political Philosophy ............................................................................................12
Community interaction ..............................................................................12
From Aristotle to Epicurus to Thomas Hobbes to John Rawls, political
philosophers have challenged, inspired, and have often acted as interdisciplinary unifying
agents between theory and practice. The early Greek philosophers began an enterprise
that often focused on attempting to better understand humanity and the implications of
actions on virtue, ethics and utility (Durant, 1991). Political philosophers have created,
examined and expounded upon a multiplicity of abstract concepts. Yet, the core of their
investigations has been to understand the meta-implications of human action on political
behavior, social construction, mobility, and even tenets of how best to live (Duignan,
2011a). Specifically, for instance, such abstract concepts include Michel Foucault’s
examination of madness and the definition of insanity as exemplified in and through
society or Martin Heidegger’s theory of the essence of true existence in a world of weak,
traditional ontology (Foucault, 1988; Heidegger, Macquarrie, & Robinson, 1962).
Inversely, criminal justice theory has traditionally honed in on problems of safety within
the law. There is a central difference between criminal justice and political theory. This
difference lies in the application of theory. Criminal justice theory includes the widely
accepted four forms of justice: procedural, distributive, corrective, and retributive
(Posner, 1990, pp. 313-352). Inversely, political theory and philosophy delve into to the
theoretical and historical underpinnings of why people act the way they do and what are
the implications on political and social stability (Hampton, 1997). Thus, given criminal
justice theory’s practical foci and political philosophy’s more abstract foci, these two
disciplines, outwardly, do not interact frequently. However, narrowing the scope in this
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thesis from the broad discipline of political philosophy to specific works referencing and
oriented around theories of justice and social cohesion, a new nuance of justice appears
that is subtle, yet pervasive. Specific political philosophical traditions, especially those
with implicit and explicit threads of criminal justice theory provide assistance in the
justifications of this new, subtle form of justice: community justice.
Community justice is premised on respect, responsibility, and cohesion through
problem solving.1 Having been implemented and evaluated in select communities across
the world, community justice is just beginning to sprout as a form of justice aimed at
addressing crime at a low level2 in order to create more responsive citizens and safer
communities.
Philosophy informs society as the basis of law and policy. It is law and policy,
which directly affect each person in society. In light of the inexorability of policy and the
subsequent effect on the lives of community members by creating values through
deliberation, connectedness and investment in the community, philosophy therefore plays
an integral role throughout society (Fishkin, 2009; Gutmann & Thompson, 2004). Thus,
establishing that there is an undercurrent of community justice-related ideas within the
field of political philosophy is helpful and worth pursuing. This is the case because this
interdisciplinary relationship could provide a solid foundation to establish the
philosophical legitimacy of the concept of community justice as an innovative form of 1 For the purposes of this research, community courts are different than traditional problem-solving courts. While both courts take a similar approach to adjudication and sentencing methods, problem solving courts tend to be more issue specific (e.g. drug courts, domestic violence courts, etc.) while community courts deal with a wide range of offenses in a multiplicity of realms. 2 Low-level crime tends to be ambiguous given the jurisdictional differences between municipalities and local court systems across the world. Low-level in New York looks drastically different than low-level crime in Milliken, Colorado. Thus for example, low-level crimes include, but are not limited to truancy, minor in possession, or even prostitution and select drug felonies in some jurisdictions (Center for Court Innovation, 2009; Milliken, 2011).
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justice worth deploying. Also, this relationship provides a framework for crafting new
and successful approaches to reduce recidivism, secure public safety, and create a safer
environment one community at a time.
The remainder of this chapter will introduce and operationalize community justice
as an alternative to the traditional form of adjudication and then introduce and address the
question pertaining to the relevance of the topic of this thesis in examining the
intersection of political philosophy and community justice.
What is Community Justice?
The first community court began in 1993 as the Midtown Community Court in
New York City. The court was formed to address low level crimes in order to catch and
stop crime at an early stage. This would, in theory, make communities safer in
subsequent years (Center for Court Innovation, 2009). Beyond reducing crime, another
goal of the first and future community courts was and is to provide restitution to the
community in order to repair the harm done as a result of the offense and also to create an
increased sense of citizenship and investment. This ideally reduces the likelihood of
recidivists committing similar or other crimes in their community. This will be discussed
in great depth in ensuing sections.
Before proceeding further, establishing an operational definition of community
justice and more specifically community courts is an appropriate starting point from
which to launch into its judicial and administrative execution. Community justice3
includes all parties who are stakeholders in the citation and prosecution of minor criminal
3 Community Justice: Made up of Community Court and Community Policing. This thesis will focus on community court primarily. This conceptual definition has been adapted from the Town of Milliken’s Community Court Policies and Procedures Manual.
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cases, including the defendant, police officers, prosecutors, case managers, and judge
(Center for Court Innovation, n.d.; Milliken, 2011). The community court process
specifically allows for meaningful involvement4 by the defendant. Meaningful
involvement in determining the terms of the deferred sentence or deferred prosecution
agreement allows for the existence and perpetuation of an atmosphere in which respect is
nurtured. Additionally, there is a focus on reasons why the defendant has committed the
crime and what steps can be taken to prevent it from reoccurring. As a result, if the
defendant successfully completes all terms outlined in the mutually-acceptable
agreement, the offense is dropped from the defendant’s record, thus allowing him or her
to have no formal criminal record for the offense that led to his or her entry into the
criminal justice system (Milliken, 2011).
Essentially there are two key differences between a traditional court and a
community court. These differences concern the judicial process and the goals of the
court. Traditional court offers general, blanket sentencing options as well as diversion
programs outsourced to a prosecutor or district attorney for minor offenses. However,
community court offers tailored, defendant-focused sentencing options, with the judge
presiding over and engaged in all aspects of the proceedings. Similarly, traditional court
proceedings are quicker and often focused on docket-clearing whereby the prosecutor or
District Attorney is the central actor through what I reference as, reactionary
jurisprudence - reactionem iurisprudentia. Contradistinctively, community court allows
for meaningful interaction and communication amongst all stakeholders in the crime, in
4 Meaningful Involvement: Addresses the active involvement by the defendant in the crafting of the sentencing terms, the defendant’s time in the community justice system and the role the rehabilitated defendant plays in the community upon successful completion of his/her community justice sentence
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an effort to address the reasons behind the crime, prevent recidivism, focus on the
damage caused to the community, and the form the restoration process will take. This
process I have dubbed, preventive jurisprudence - praecaventur iurisprudentia.
While the practice of diversion is a common one in addressing juvenile and low-
level crime in traditional courts, the difference between diversion achieved through the
court and diversion achieved outside of the court, is central to the community court
process. Diversion for qualified, low-level crime cases adjudicated in a traditional court
happens outside of the court. Diversion for qualified, low-level crime cases in community
court is achieved through the court, utilizing the court as the most ideal resource to
increase participant accountability from both the court as well as the defendant. As seen
in community court, in-court diversion allows for the court to be able to act and/or react
swiftly for reinforcers and sanctions (Berman & Feinblatt, 2002; Center for Court
Innovation, n.d.; Nolan, 2003). The fact that traditional court offers diversion options to
qualified cases is a strong step in the right direction from a community justice
perspective, given that the background and external factors pertaining to the defendant
and the crime committed are taken into account when crafting the diversion sentencing-
plan. This allows for the underlying motivation, rather than the mere instance to be
addressed in order to increase the likelihood of avoiding future crimes of the same or
greater magnitude. However, the difference of where diversion takes place and how it is
monitored is the additional, crucial step taken by community court. Pursuing diversion
programs through the court not only increases accountability and efficiency (as
previously referenced) but also firmly roots the court in the central idea of community
and interconnectivity amongst not only the stakeholders, but all community members.
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Traversing the adjudication process as a unit is vital to community court and its ultimate
success and effectiveness.
Why Is Community Justice Worth Pursuing?
The justice system holds enormous power. Whether in traditional justice, court, or
even mandatory minimums, justice in society was intended by philosophers, law-makers
and adjudicators to be the great equalizer as seen in the writings of Aristotle, John Locke,
and John Rawls (Aristotle, 350 B.C.E./1943; Locke, 1690/2004, Rawls, 1971). Therefore,
with this power comes great responsibility: through both implicit and explicit means,
court sentencing affects not only the life of the offender but also the entire community.
Given this power and responsibility therein, Thomas Hobbes is a useful voice in this
discussion in light of his notion of supreme power. Hobbes argued that the supreme
power (e.g., court, the executive) holds significant influence. Extrapolating from this
point, Hobbes’s “supreme power” in this case is the court. The influential power of the
court is in the ability to levy a sentence often based on the recommendation of the
prosecutor (Hobbes, 1651/1994). This power lies in a judge’s authority to define the
severity of a crime based upon the severity of the crime committed. For example, if the
offense is prostitution, there can be a blanket sentence option given to most cases of
prostitution. Precedent arising out of rulings in previous prostitution cases establishes this
sentence option. However, a court could levy this option without regard for personal
background, number of appearances before the court, or socioeconomic status, thereby
addressing the instance of prostitution. In this example, the implication supported by
Hobbes’s “supreme power”, is that the court is thusly declaring the crime of prostitution
to be serious only insofar as it requires a general sentence to address this instance, rather
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than the underlying problems leading to the instance (Hobbes, 1651/1994). In this
example, the focus of the court is on the instance of prostitution rather than on coupling
the factors contributing to the defendant’s choice to commit the crime. The sentencing,
therefore, is a temporary solution, rather than a holistic approach based on underlying
factors in an effort to prevent future occurrences of the crime. And it is this temporary
solution that acts as a social construction, which reinforces the defendant’s place in
society as a criminal, thereby encouraging that pattern of behavior and ultimately
resulting in a life of crime (Schneider & Ingram, 1997).
Community justice broadly, and community court specifically addresses that
issue, which is rampant in justice systems throughout the world today. Problems of
prostitution and other low-level crimes are not the only social problems community
justice is successful at addressing. The problem of blanket sentencing that does not fit the
crime, such as in the previous prostitution example, is also addressed by community
justice, in an effort to prevent not only crime, but recidivism as well to create safer
communities.
But this concept of community justice is new, and very little is available regarding
empirical proof of its perceived, theoretical effectiveness. As such, caution should be
exercised when pursuing broad implementation of community justice. An example of
hasty wide-spread reaction to a perceived yet untested criminal justice program is the
infamous Minneapolis Domestic Violence Experiment (MDVE). Based on a seemingly
positive result of a report on arrests and non-arrests of domestic violence offenders in
Minneapolis, the MDVE found that giving officers the latitude to make an arrest without
warrant if a perceived domestic violence offense had occurred would drastically reduce
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domestic violence crimes across the board (Buzawa & Buzawa, 1990). As a result of the
positive veneer of this report from the Police Foundation, many states implemented the
change in police practices (Sherman & Berk, 1984). However, without regard for
regional differences in crime trends, types of offenders and the flawed nature of the
shortened study time period which likely skewed the results, the MDVE proved to be
much less effective for several states that implemented it (Fagan, 1989). This is an apt
example of hastily implementing a program lacking substantive, consistent empirical
support. Therefore, applying this principle to community courts and their perceived
fecundity aside, communities must proceed with caution when pursuing implementation.
Also as learned from the MDVE, communities must take an individualized approach to
the implementation of community court by crafting a model that most ideally suits the
needs, demographics and other regional differences in order to address crime on a local
level effectively.
Therefore, this thesis addresses the following questions pertaining to
interconnectivity and relevance between the two disciplines of political philosophy and
criminal justice: Is it relevant to examine the intersection of these two disciplines? Why
would such a relationship between traditionally disparate forms of disciplines be worth
discovering and developing? Is community court effective at reducing recidivism? What
are the implications for the criminal justice field?
Chapter two focuses on the review of literature in several realms including two
key legal theories supporting community justice known as restorative justice and
therapeutic jurisprudence. Also, political philosophy is expounded upon as a justification
for community justice playing a key role in its legitimization. Chapter three discusses the
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methodology represented in this thesis honing in on the primary use of an empirical case
study on the East of the River Community Court (ERCC) project in Washington D.C.
Chapter four unpacks the previously introduced ERCC case study with analysis and
application. Building upon the success of community justice as established and analyzed
in the previous chapters, chapter five advocates for the expansion of community court to
a nationalized institution in the form of a sample policy memo to President Obama. In
this chapter, implementation and evaluation of a national community court system is
introduced and discussed in depth. Finally, chapter six concludes the thesis with a return
to the political philosophical justification and legitimization of community justice.
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CHAPTER II
REVIEW OF THE LITERATURE
Research suggests that community courts are effective in reducing crime and
recidivism. The investment into the defendants, victims and community provide
substantive support and encouragement of safer, more responsive communities
(Crawford, 1995; Dubow & Podolefsky, 1982; Hawkins et al., 1995). In spite of the
research available to support the effectiveness of community courts, there is a substantial
lack of peer-reviewed literature on the theoretical underpinnings of community courts,
being therapeutic jurisprudence and restorative justice. This is the case, merely because
of the newness of these theories, as well as that of community courts. Specifically
therapeutic jurisprudence was conceptualized circa 2000 by Dr. David Wexler;
restorative justice was formalized as an effort to institutionalize peace in the 1970s; and
the first community court was implemented as an alternative to traditional court in 1993
2000). Once the theoretical and philosophical foundation is laid for community justice, in
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order to establish its empirical effectiveness as an alternative to traditional court, the final
piece of literature to be examined is a case study. The East of the River Community
Court project analysis provides an empirical look at the effectiveness of community court
as currently implemented. The review briefly transitions to a methodological and
descriptive review of the implications these theories of justice have on the
implementation of community courts. Finally, the review concludes with a discussion of
the current state of the literature and how this research fits in the body of both justice and
political theory as well as in the practical application of alternative forms of adjudication.
Disparate Realms of Literature Explored
Over the past several decades, traditional juvenile justice and low level court
systems and programs have often tended toward isolating offenders by funneling them
through a broad, general court which typically does not take external factors into account
when determining sentencing (Hawkins et al., 1995). This isolation of juveniles and low
level offenders leads to a phenomenon referred to as the “revolving door of recidivism”
(Nolan, 2003). The criminal justice system cannot continue down this path due, in part, to
a variety of factors such as court sustainability, the goal of reduced crime rates and costs
(Sherman et al., 1997).
Fortunately, there is newly emerging research in the realm of a substantive
alternative to this problem, through the mechanism of community courts (Berman, 2000).
These community courts are propped up on the implicit and explicit foundation
comprised of jurisprudential and philosophical theories which aid in justifying
community courts as legitimate means whereby low-level crime is addressed (Karp &
Clear, 2000).
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Political Philosophy
While pragmatism and application are vital pieces to the implementation of
community justice, just as necessary for its legitimization is the political theory which
buttresses and undergirds most notions of justice known in the world today. This section
examines the body of political philosophical literature to determine trends of community
justice specifically and justice5 more broadly. The literature suggests that community
interaction is inevitable and necessary in creating responsive citizens; that punishments
must be tailored to the fit the crime committed; and also that the justice system must be
made equitable, fair and easily accessible if the success of the defendants, victims and
community as a whole is to be ensured (Bentham, 1843; Aristotle, 350 B.C.E./1999;
Rawls, 1971). The section is organized through examining political philosophy focused
around these three key themes, which are vital to the theoretical and practical application
of community justice.
Community interaction. Communities play an active role in the adjudication
process. Whether or not the results are effective depends not only on indicators of
effectiveness, but also on the community and the stakeholders involved (Barzilai, 2003).
Additionally, the community interaction aspect is vital to community justice, because
when one is invested in and encouraged as an active member within society, one is less
likely to commit a crime or act against his or her given community. This phenomenon is
5 As a point of clarification, while there are many forms of justice in philosophy, the form of justice discussed throughout this paper remains in the realm of restorative justice. There are other philosophical nuances of justice coupled with restorative justice including consequentialism in that justice is forward looking with a focus on maximizing ideal social benefits for broader society (Bayles (Ed.), 1968). Additionally, there is a strong undercurrent of utilitarianism, yet with a more specified view focusing on crime reduction, and the moral worth of an action as determined by its outcome (Mill, 1863/1991; Bentham, 1843).
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known as the good-soldier syndrome (Podsakoff et al., 1997). Thus, an exploration of the
ideal community engagement on a broad level within the political philosophical tradition
is worth developing.
Aristotle’s famous piece Nicomachean Ethics was a crusader in the literature of
political theory, being the first time in the western world that the term “ethics” was used
as theory as well as praxis. Aristotle characteristically stays in the abstract throughout this
piece, yet provides uncannily pragmatic practices. Specifically he wrote, “Then do the
carpenter and the leatherworker have their functions and actions, while a human being
has none, and is by nature idle, without any function? Or, just as eye, hand, foot and, in
general, every part apparently has its functions, may we likewise ascribe to a human
being some function besides all theirs?” (Aristotle, 350 B.C.E./1999, pp. 99-112)
Through this, Aristotle is highlighting humans’ roles in society, by pondering the ideal
that a human’s role is for the broader consequence of society. One’s role cannot be
separated from one’s humanity. Through examining the alternative that a human’s roles
is merely self-benefitting only within society, Aristotle concludes throughout the chapter
that humans impact humans en masse based on daily interaction, natural occurrences and
results of actions done (Aristotle, 350 B.C.E./1999). Essentially, Aristotle was
underscoring a central idea in community justice in that community interaction is
inevitable and will never cease, based on the fact that humans live together.
In addition to the minimization of harm caused to one’s self, Epicurus, a
prominent philosopher of the axial age, community and living in unity with one another
(Epicurus, 1994: circa 300 B.C.E. original; Meister, 2009). While little of his writing
remains, these two important aspects of his philosophy (mostly crafted and survived by
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the Epicurean School) are foundational philosophical principles underpinning community
justice (Duignan, 2011). Specifically the minimization of harm to one’s self is seen in the
proactive approach to sentencing of defendants in order to minimize future crimes of
greater consequence (Epicurus, 1994: circa 300 B.C.E. original). As a result, all citizens
and defendants benefit through safer communities with minimal amounts of harm
through crime and recidivism (Malkin, 2003). And additionally, Epicurus’ notion of
societal peace and harmony come from being engaged in one another’s lives is seen
through the sentencing options in addition to the pursuit of broader community cohesion
through a focus on minor offense reduction (Epicurus, 1994: circa 300 B.C.E. original).
Addressing and stopping the problem of criminal behavior at an early stage through
preventative measures benefits all stakeholders in the crime, including the community at
large, thereby increasing the peace and harmony of the given community (Center for
The coordination between the varying sectors of the administration and judicial
stakeholders to provide quality services to the defendant to allow the defendant to pursue
successful completion of his/her sentence more efficiently is a key piece to the
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community court and justice process (Berman & Feinblatt, 2002; Nolan, 2003).
Interconnectivity and cooperation between these players is an additional nuance further
supported by the theoretical framework introduced in Aristotle’s notion of community
and the effects cooperation has on society as well as the players involved (Aristotle, 350
B.C.E./1999).
Milliken. The success of the Town of Milliken’s community court is examined in
a slightly different manner. There has been a limited amount of data collected and
analyzed on its court. The data collected and analyzed was compared against the
projected or ideal outcomes the Town wanted to see from their community court. These
goals were set up in tandem with the Center for Court Innovation and their consultants
(Shelley et al., 2011). In order to provide a general overview of the Town of Milliken’s
community court and what they wanted to see from it, there are five key goals to
realizing community court’s success as outlined in the 2011 Needs Assessment as well as
in the policies and procedures manual. They are, Goal 1: Respond to defendant, victim
and community issues in case selection through enhanced information gathering; Goal 2:
Encompass individualized sentences and dispositions that address defendant’s underlying
behavioral problems and/or restore the harm of the offense to the community; Goal 3:
Provide a Mechanism for Effective Court Supervision and Increase Participant
Accountability; Goal 4: Strengthen the connection between the court and the community
through problem solving, collaboration and involvement; Goal 5: Promote Public Safety
by Reducing Recidivism and Preventing Crimes (Burack, 2011; Shelley et al., 2011).
Based on the limited amount of data by this young community court, goals three
and five and selected operational objectives laid out in them that best encapsulate the goal
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and its purpose, is examined. For objectives 3.1, 3.4, 3.5 and 5.1 of goals 3 and 5, see the
projected outcomes versus the empirical outcomes in Table 4.2 below.
Table 4.2 – Milliken: Empirical Outcome vs. Projected Outcome Source: Davis & Waggoner, 2012
Projected Outcome Empirical Outcome 6 7 8
90% of participants attend mandatory court
reviews or have proof of compliance with a non-appearance court review
96% attended court reviews or showed
compliance
80% of the participants completed restorative
justice activity
96% completed restorative justice activities in
their sentence 75%
of the participants completed their sentence successfully
85.7% successfully completed in 2012 with 9
cases pending at the time of data collection 50%
of the participants did not recidivate by committing similar crimes within the town
catchment area at least one year after completion of case
9.3% of community court participants have
recidivated
Based on this snapshot of data measuring actual outcomes versus projected
outcomes and associated goals early in the program, Milliken’s Community Court is
already proving successful in light of the positive goal completion and numbers achieved
thus far, to say nothing of success stories that are not empirically driven, but rather
6 Breakdown: 3.1 – 72 of 75 total cases continued with the program. The remaining 3 defendants moved to other towns thus transferring jurisdiction, or entered the foster system and were closed; 3.4 – the same case is true for this objective as with the previous objective; 3.5 – 36 successful completions, 6 unsuccessful completions totaling 42 cases in 2012. *Data beyond 2012 is not completed and/or available. Thus the data represented for the Town of Milliken throughout this paper is preliminary data and limited. 7 Note: for those who do not successfully complete the program, the ramifications include revoking community court terms and associated plea deals (i.e. DPA or DSA) and reverting to traditional sentencing as delineated by the Judge during a normally scheduled review, as based on prior discussion amongst community court team. Those whose cases were closed were not factored into the final percentage count. 8 Breakdown: 5.1 – 75 total cases with 7 recidivists (33 in 2011; 42 in 2012). *Data beyond 2012 is not completed and/or available. Thus the data represented for the Town of Milliken throughout this paper is preliminary data and limited.
48
intangible nuances of success (e.g. smiles on faces, personal “thank you’s” from
With the intricacies and nuances of the problem at hand, there are a variety of
possible alternatives aimed at addressing and reducing juvenile crime and recidivism
rates through community court. There are four proposed alternatives discussed in this
section. Specifically they are: a centralized national community court system; a mandate
56
for the establishment of federal district community courts; to continue with traditional
courts and do nothing; or a combination of the first two alternatives through the creation
of a central national community court to act as the administrative wing of the district
community courts established under a federal mandate.
The first policy option to establish a centralized, national community court in
Washington D.C. is an alternative which takes the model of the United State Supreme
Court, being the single centralized authority established to adjudicate all community
court eligible cases.9 Any and all community court eligible cases are processed and
overseen at this centralized court, thereby nullifying the current community courts seen
around the country today. The centralization of the community court alternative provides
a national focus on misdemeanor crimes and offense in an effort to address crime at a low
level to aid in the wide-spread reduction of crime and recidivism.
The second policy alternative is the mandate to establish district federal
community courts. This model provides a similar adjudication process currently seen
today through the federal district courts in all American states. However, the current
federal district court system does not include or participate in community court-type
sentencing options or process, and is therefore not a community court system. Thus, this
option transforms the current federal district court system where juveniles or low-level
offenders are traditionally tried in regular court, to federally funded and run district
community courts.
9 Community Court Eligibility is determined based in part on: lack of extensive criminal history, lack of sexual criminal offenses, lack of felony record, and a variety of other stipulations ensuring quality participation from qualified defendants in the program (adapted, in part, from the Town of Milliken’s Community Court Policies and Procedures manual).
57
The third alternative is to simply do nothing. This option is to continue
adjudication of minor and juvenile offenders through traditional court and sentencing
options, thereby allowing the recidivism and crime numbers to remain relatively
unchanged.
The final alternative is a combination between the first two policy alternatives.
This alternative allows for the benefit of a centralized federally-run court for juvenile and
low-level offenders to have access to a community court at a local level (federal districts
as are currently seen today with traditional court) than that of a single, centralized
community court only in Washington D.C. Additionally, the centralized governance
structure of the district community courts around the country is achieved through
administration and top-to-bottom federal jurisdictional processes. Again, this alternative
provides the benefit of centrality and oversight from Washington D.C. yet with the local
access and resources tailored to different communities through the district federal courts.
Projected Outcomes & Tradeoffs
Based on independent and growing research, evaluations and analyses showing
the effectiveness and success of community courts as they are formally implemented
today, it is projected that a national community court program for low-level and juvenile
offenders reduces both crime and recidivism throughout the country on a broad scale.
This aids in creating safer communities. For example, in the East of the River
Community Court project (ERCC) evaluation, participants in the program had a 60%
lower recidivism rate while their cases were pending and a 42% lower recidivism rate
upon a year of their case completion, as compared with defendants not in a community
court but a similar region (Westat, 2012).
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However, as is the case with many policies and alternatives to traditional policies,
there are tradeoffs associated with community court. The clearest tradeoff, to be further
discussed in the following section, is that of financial feasibility. The move from
traditional court to community court requires significant infrastructure shifts both
administratively and judicially. Thus, the tradeoff would be higher crime rates for
initially comparatively lower costs or initially higher comparative costs for lower crime
and recidivism rates and ultimately safer communities.
An additional tradeoff is that of time in the realm of training and re-training
current court employees (primarily administratively). Shifting from one policy or form to
another requires time to adapt and includes varying degrees of learning curves for those
judicial practitioners charged with community courts implementation. This learning curve
and time spent training in new and adaptive judicial and administrative processes is a
relatively significant tradeoff compared with that of doing nothing and remaining on the
current, traditional trajectory. Similar to the previous financial tradeoff, it is either higher
crime and no learning curve/time spent training or lower crime and acceptance of lost
time training/retraining and the administrative costs associated with this new trajectory of
executing justice.
Recommendation & Discussion
President Obama, my recommendation for you is to pursue alternative three. We
can no longer sit and do nothing forcing municipalities to piece meal a solution with
sparse community court implementation around the country. At the same time, we do not
need to hold so much control over the adjudication of minor and juvenile offenders as to
force all low-level crimes through a singular Washington, judicial bottle neck. Thus in
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light of the administrative and judicial hurdles facing our country’s criminal justice
system as well as the high levels of crime and recidivism, it is time for action through
implementation of community court nationally. We need to be the leaders on this front
and to implement a centralized community court system, with lower level, federal district
courts set up to only handle these issues, thereby front-loading the criminal justice system
to avoid more and increased crime in the future. The pace currently is too slow given its
proven effectiveness. It is time to implement this on a broad scale.
Based on the aforementioned evaluation of the ERCC as well as numerous
popular and academic journal articles illuminating community court’s success as
implemented on a community-by-community basis, it is estimated that implementing
community court brings down rates of reoffending among misdemeanor and juvenile
offenders. This causes communities to be safer across the country.
In regard to economic feasibility, the short answer is it would initially cost more
than doing nothing. However, the means by which the alternative is economically
covered is through rechanneling funds currently being funneled to traditional juvenile
court programs, which have historically been less effective, to community court
programs. This is in lock-step with the broader move toward the eventual transitioning of
all traditional courts to community courts. Pursuing community court includes carrying
out and monitoring sentences for juveniles through the court, rather than outside of the
court. This is currently how the traditional court system functions: juveniles are
essentially outsourced to prosecutors or district attorneys to complete their sentences set
by the court. Community court achieves sentencing through the court under the guidance
of the judge as well as the case managers thereby increasing accountability and reducing
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the funds spent on additional legal expenses. Case managers are much more affordable
than lawyers. Additionally, the increase in program costs could come from state justice
expenses a categorical mandate. By front loading the criminal justice system with
increased funds now to decrease future crime and also create invested citizens out of
offenders rather than giving them blanket sentences, and then sending them out to do the
same thing again, we are stopping this revolving door of recidivism. Thus the defendants,
when more invested members of the community, gains skills as a result of sentences and
give back to the community through not only committing less crimes (saving money and
creating safer communities) but also by working in and for the good of the community,
rather than a life of crime, which hurts everyone in the long term.
The political feasibility also creates hurdles initially, compared with taking no
action to increase the effectiveness and efficiency of our criminal justice and court
system. The clearest political hurdle is convincing both legislators as well as the general
public that a change is in fact needed; especially change that comes with a price tag. An
avenue to overcome this hurdle is to espouse community court, not as a financial or
political obligation weighing people down, but rather a fresh alternative increasing public
safety, through techniques proven to reduce crime and recidivism while simultaneously
creating more responsive, invested citizens out of defendants who give back to their
communities. Investment in defendants encourages them to actively engage in their
community rather than staying in a life of crime thereby costing the community more
money in the long run.
Again, though, it would not be an easy road. It would require serious political
capital to achieve a greater good for all community members. The key is to constantly
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keep the focus off of the money and the partisan politics that would inevitably arise, and
focus on the public safety, by getting police officers and judges on board. This aides not
only in pursuing the implementation of this policy alternative, but by also in fostering
cooperation between sectors of the criminal justice system, as well as getting both sides
of the aisle on board. Opposing public safety and public service provider cooperation
would not play politically well in most, if not all, districts throughout the country.
Memo Appendix 1: Implementation Strategy
The first step in implementing a national community court system is setting up the
office as a sub-cabinet agency within the Department of Justice. It is the Division of
Community Court (hereafter DCC). The DCC acts as centralized community court
administration and resource support for the district courts around the country. This
provides the necessary oversight at the federal level to allow the local or districts to have
the utmost freedom in the administration of their courts.
Upon creation of the DCC, the statistical wing of the Department of Justice,
which is the Bureau of Justice Statistics, will contract with Westat Inc. (the statistical
analysis firm who provided the first holistic community court evaluation and analysis for
the ERCC). This contractual relationship would provide the funding to conduct a crime
rate study for types of crimes in districts with current federal district courts. Pre-
evaluation data provide the necessary statistical starting place to determine the funding
brackets of each district court. Thus, funding amounts for each community court are
based on types and rate of crimes committed. For example, the districts with high rates of
crime receive more funding in order to appropriately and efficiently address the crime in
their given district.
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Apart from funding, a crucial step in the implementation of the national
community court system is the crafting of general operating procedures or bylaws under
which each district community court operates. Bylaws and operating procedures
developed through the DCC allows for standardized implementation from district to
district. However, each district and state is uniquely outfitted with varying types of crime
potentially foreign to another district. Also the levels and severity of the crimes can
fluctuate, making a standardized formula for the implementation of community courts
across the board difficult. Thus, the centerpiece of the bylaws for all community courts is
the subsection allowing each district court to have greater license in determining
administrative and sentencing procedures that work for them and fit their location and
needs. For example, districts with high rates of harassment charges require a community
court focused more on that as reflected through sentencing options tailored to those with
harassment issues. Likewise, districts with high prostitution rates require sentencing
options for defendants caught using or engaging in prostitution. And districts with higher
truancy rates, but less harassment and prostitution rates need the freedom to craft
sentencing options focused in and around the schools to increase both school attendance
as well as in-school performance
Finally, the implementation of a national community court system is a large,
bureaucratically arduous process. Thus, to ease this inevitable burden, transition teams
established through the Division of Community Court, Bureau of Justice Assistance and
the Center for Court Innovation travel around the country and aide in the move from
traditional court to community court. These teams provide necessary training and
retraining of current court administrators. Additional transition teams include those made
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up of judges currently engaged in community courts who coach other judges in the
processes of the new form of adjudication. This piece is crucial given that a key
difference between traditional court and community court is that all cases are monitored
and tracked through the court under the judge’s supervision and oversight rather than
outside of the court where the case is outsourced to a prosecutor or district attorney.
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