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January 03, 2005

the civic significance of "problem-solving courts"

Rekha Mirchandani has written a fascinating short essay with the somewhat forbidding title, "Battered Women's Movement Ideals and Judge-Led Social Change in Domestic Violence Courts." It's in The Good Society, which is unfortunately not online.

Domestic violence courts are an example of specialized judicial bodies; other examples include drug courts, mental health courts, and community courts. These bodies have been created since the 1980s to increase efficiency by streamlining the resolution of many similar cases. For example, all drug cases in a particular community may go to the "drug court." Each type of court is also a response to a social movement that has demanded special attention to its issue. A third motive for creating such courts is to combine punishment with counseling and other services.

Thus domestic-violence courts were created to increase efficiency but also in response to demands from the women's movement. Feminists argued that battery was a deep (but remediable) social problem, arising because people viewed masculinity in terms of "power and control" and therefore excused criminal behavior when it occurred within households. Feminists sought domestic violence courts as a way to ensure that their concerns were addressed.

As Mirchandani notes, we often assume that there's a tradeoff between efficiency (on one hand) and moral thoughtfulness, discretion, and dialogue (on the other). Domestic-violence courts achieve marked gains in efficiency by standardizing the treatment of similar cases and delegating most tasks to prosecutors and clerks. Defendants who plead guilty are moved rapidly through a series of steps from plea-bargaining to counseling and mandatory community-service, overseen but not personally managed by the judge. As a result, judges are able to devote their time to crafting the overall process, listening to victims and defendants, and making statements at appropriate times.

For example, a judge may tell a victim who is present in court, "Nothing justifies the use of force. ... You do not need to take responsibility for what he did. He has to appreciate what he did." The judge may also tell a group of convicted fathers that domestic violence tends to recur in families. Thus, "You can make a big difference for your family now and for your child's family later and down on through the generations. It's a big responsibility. It's a big contribution to the community." (By the way, I hope that judges listen as well as lecture.)

In short, the gains in efficiency that come from standardization allow the legal system (a) to respond effectively to a legitimate demand for more attention to domestic violence; and (b) to engage in a dialogue with defendants and victims, using ideas that first developed within a social movement and were later endorsed by a democratic government. Mirchanandi concludes, "In domestic violence courts, we see the values of efficiency and the values of social change, traditionally conceived as oppositional, coexisting pleasantly and effectively side by side."

Domestic-violence courts are only helpful to the extent that the feminist theory of violence is valid--as I think it is. Drug courts may be less helpful, because their ethical assumptions may be misplaced. (One can even imagine a "problem-solving court" that embodied awful values and allowed a judge to hector cowed defendants with mere prejudices.) However, from the perspective of democratic theory, it is important to recognize that a system can become more responsive and more intentionally ethical as a result of being made more efficient.

Posted by peterlevine at January 3, 2005 11:48 AM

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