Court and Community Collaboration: Ends and Means, A Discussion Paper (Excerpted for the original document prepared by the authors as part of its Community-Focused Court Development Initiative) by David B. Rottman, Pamela Casey, and Hillery Efkeman February, 1998 Background Court and community collaboration has many meanings. The focus, philosophy, and modus operandi vary from place to place. The "court" can be an individual judge, and entire trial court, or even a state system of trial courts. The ‘community’ in collaboration can be specific local organizations or the public at large within a defined geographical area. At this stage, it is useful to distinguish between what might be termed the programmatic and the systemic application of court and community collaboration. On the programmatic level, collaboration is a blueprint for establishing court programs or special courts or for dedicating a judge and courtroom to particular set of cases. Trial courts gain the resources needed to adjudicate new types of disputes in criminal and civil law, enhanced public understanding and support, and the energy and enthusiasm of volunteers. Communities gain a unique vehicle for addressing local problems, combining the teeth of court sanctions with the power of community networks and knowledge. Thus far, such collaborations have been forged primarily between communities and courts of limited jurisdiction: those that process misdemeanor criminal cases and juvenile delinquency cases. On the systemic level, court and community collaboration offers an orientation on the administration of justice, speaking to the manner in which the judicial branch of government should be run in the 1990s and beyond. Court and community collaboration is an ethos that can guide a court, a court system, or a state judicial branch to higher levels of performance and generate a public constituency that understands and supports the courts. The use of the word "collaboration" best captures both the systemic and programmatic dimensions of interest and promotes a dialogue that is framed in terms of principles. The Mission of Court and Community Collaboration The mission of court and community collaboration is to improve the administration of justice so as to produce better outcomes, results, and impacts for individual, communities, and society at large. The effective and efficient administration of justice requires public support and involvement. Individuals, communities, and society at large benefit from the effective and efficient administration of justice. Court and community collaboration stems from and requires consultation with the public about how the courts should operate. Court and community collaboration is a sustained two-way commitment to ensuring that the justice system is open and effective for all. It is not a one-shot event aimed at solving one isolated problem or satisfying one special interest group.1 Ultimately, court and community collaboration is about the administration of the state courts. Collaboration is a set of core values that guide a court system or an individual court across the full range of its caseload. The ethos of court and community collaboration is applicable to general jurisdiction and appellate courts, as well as limited jurisdiction courts. The essence of collaboration is the involvement of the community in the operations of the courts. Commentary. Courts working alone cannot deliver effective justice. Communities as well as individual courts confront problems that become more manageable when the community participates in devising and implementing solutions. Court and community collaboration enhances and shapes the administration of justice to ensure the courts can make the maximum contribution to quality justice and thus to quality of life in communities. Court and community collaboration delivers six primary benefits to the administration of justice and its contribution to community life: 1. Reconciles the Bench and Public Public trust and confidence is essential to the courts. The judicial branch of government is charged with preventing tyranny by the majority and with protecting the constitutional right of individuals. Yet, compliance with the law depends to a substantial degree upon public respect for the courts and the perceived legitimacy of the judicial process. Court and community collaboration enhances public confidence in the courts in two major ways. Recognition and Relevance. Through collaboration courts become recognized as local institutions that are relevant to the concerns of the ordinary citizen. Residents have a concrete connection to the court system. In recent decades, the courts of most urban and many rural areas have become distant from the public, both physically and psychologically. The public lacks a sense of connection to the court system. Judges are becoming less prominent members of the community. Equally important, courts are viewed as irrelevant to solving the problems of the greatest concern to most citizens – the breakdown of social and family support networks. Collaboration promotes recognition of the court’s contribution to the community and underscores it relevance to community life. Commentary. Only about one person out of every four has direct contact with the courts. Consequently, public perceptions of the courts are shaped by notorious cases, fictional representations, and filtered through the news media. There is little public confidence in the courts. The general public has strong images of the state courts: that courts are costly to use, difficult to understand, lenient, slow to reach decisions, and influenced negatively by political considerations. There are also concerns about the fairness of court decisions as applied to various racial and ethnic groups, and across the income spectrum. Court and community collaboration affords individual courts and court systems a means to influence public opinion at the local level through education and by becoming more accessible, fairer, timelier, and accountable. The Legal vs. the Public World View. Lawyers and the public tend to view disputes somewhat differently. Lawyers approach a dispute through the application of rules and logic and impersonally. The public tends to approach a dispute on a more emotional basis, valuing harmony and the continuation of relationships even where logic might point to another outcome. Court and community collaboration therefore is conducive to a more balanced consideration of solutions to problems than is likely to occur when the task is left to lawyers alone. Public involvement strengthens the ‘ethic of care’ dimension in solving disputes. Commentary. The public has contradictory expectations of the courts. The public views the courts positively because court decisions are founded in procedural justice. In contrast to legislatures and executive agencies, courts make decisions through predictable, open, and even-handed processes, and explain the reasons for their decisions. At the same time, the public views the courts and the legal profession negatively because lawyers appear to lack a strong ethic of care that incorporates the substance of a dispute and the circumstances of the participants in that dispute. 2 2. Strengthens Judicial Independence Balances Independence and Accountability. Collaboration contributes to an appropriate and durable balance between the demands of judicial independence and the demands of judicial accountability. Judicial accountability currently occurs on an episodic and unpredictable basis, and typically centers around a single controversial court decision. Court and community collaboration provides a forum for an ongoing, informal informed exchange, avoiding a case by case accounting and allowing judges to respond to unfair attacks and misperceptions of the judicial role. Commentary. "Collaboration offers an answer to the question: accountability to what? Accountability is accomplished by participation by the judicial branch in the process of creating justice in the community; to engage with the community in the important question of justice; to participate in the improvement of justice in the community; to negotiate certain structural changes to ensure that the courts are relevant providers of justice within the community." 3 Builds a Public Constituency for the Courts. The process of collaboration builds a public constituency for courts. The most effective way to create such a constituency is to invite citizens to become directly involved in court processes, as volunteers or advisors. Once the citizens understand the role played by the courts, they are able to speak on behalf of the court’s interest. 3. Improves Case Disposition Effective and Appropriate Case disposition. Trial courts increasingly serve by default as a front-line response to problems of substance abuse, family breakdown, and mental health. Courts consequently are struggling to create dispositional outcomes appropriate for individuals with serious personal and health problems that other entities have been unable to solve or that fall between the cracks of existing services and institutions. In short, courts, and especially misdemeanor and family courts, are dumping grounds for some of America’s least tractable problems. Collaboration with community organizations can build more appropriate and more effective choices for judges in criminal and civil cases. Commentary. Currently, the values of court and community collaboration are expressed primarily through special courts or courtrooms dedicated to a specific set of cases in a specific location. Indeed, court and community collaborations, like drug courts, emerged in response to problems confronting individual judges and trial courts, as well as the judiciary and the state courts as a whole. Judges in many of those courts have taken the lead in developing programs that merge court and community resources to respond effectively to the problems of individuals and communities. Promotes Therapeutic Outcomes for Individuals and for Communities. Court and community collaborations have the potential of developing procedures and decision options that are therapeutic in their impact on individuals. A therapeutic outcome is one that promotes the psychological or physical well being of the people involved in or affected by a court case. The field of therapeutic jurisprudence argues that all court decisions result in either a positive or a negative therapeutic effect. The therapeutic option should be selected whenever other considerations are equal. In the aggregate, the decisions of the judges on a court can be viewed as either therapeutic or anti-therapeutic for communities. Collaboration directs attention to those procedures and options that tend to result in positive impacts on communities. Commentary. "The therapeutic jurisprudence heuristic suggests that the law itself can be seen to function as a kind of therapist or therapeutic agent. Legal rules, legal procedures, and the roles of legal actors (such as lawyers and judges) constitute social forces that, like it or not, often produce therapeutic or anti-therapeutic consequences. Therapeutic jurisprudence proposes that we be sensitive to those consequences, and that we ask whether the law’s anti-therapeutic consequences can be reduced, and its therapeutic consequences enhanced, without subordinating due process and other justice values." 4 4. Attracts New Resources Expanded Court Resources. Collaboration provides both courts and communities with new resources. As already noted, courts obtain new options for diverting cases (including ones in which the community is involved in recommending a disposition) and as outcomes. Collaboration has allowed courts to develop imaginative and effective programs for sentencing substance abusers, domestic violence batterers, and juvenile delinquents. Collaboration also provides courts with the talents and energy of volunteers. Volunteers are motivated by opportunities for self-realization and personal growth. They are willing to be trained, supervised, to make a long-term commitment, and to accept significant levels of responsibility. Enhanced Community Resources. Judges are uniquely well placed to provide leadership on committees and task forces charged with coordinating the delivery of services to individuals and families. Judicial leadership is most prevalent in problem areas such as substance abuse, domestic violence, juvenile delinquency, and child abuse and neglect. Judges are becoming involved in other policy arenas, notably in efforts to revitalize neighborhoods beset by public nuisance crimes such as street prostitution, vandalism, and disorderly conduct. Also, as noted previously, through collaboration communities gain a unique vehicle for addressing local problems, combining the teeth of court sanctions with the power of community networks to forge more effective forms of treatment and social service delivery. A Contemporary Judicial Role. Many judges are satisfied with the role of decision-maker in individual cases as presented to the court by lawyers; a growing number of judges, however, find that traditional role confining and unsatisfying.5  An expanded judicial role is fundamental for attracting and retaining qualified judges. Court and community collaboration defines an expanded judicial role that current and potential judges will find attractive. While court and community collaboration offers an ethos that legitimizes expansion of the traditional judicial role, it does not require that all or most judges participate at the programmatic level at which collaboration occurs. 5. Strengthens Communities Courts as Allies. Community coalitions gain a unique partner in efforts to comprehensively improve local conditions through collaboration with the courts. Court participation promotes a synergy in which the contributions of the various partners enhance and magnify their individual effects. The role played by the Midtown Community Court in revitalization of the Times Square area of Manhattan demonstrates the potential judicial branch contribution. Restitution. Court and community collaborations often contribute directly to living conditions through the community service work crews or through juvenile delinquency prevention programs. Sanctions. Community-initiated and community-based treatment and social service programs benefit from collaboration with the court. The courts can combine the incentive of rehabilitation with the threat of sanctions for non-participation or non-compliance. 6. Accommodates Diversity Empathy with Minority Viewpoints and Concerns. Court and community collaboration is an opportunity for judges and court staff to access and become sensitive to the distinctive perspectives and concerns of racial, ethnic and class groups. The benches of few courts look like the communities that they serve. Judges tend to number among the elite of their localities. Collaboration offers judges a window into the perspectives and priorities of segments of the community with which they have little if any contact outside of the courthouse. Reducing the Estrangement of Minority Groups from the Courts. Court and community collaborations facilitate a meaningful dialogue between the judiciary and groups traditionally estranged from the justice system. Participation in collaborations places judges and community members on a more equal footing. The setting is neutral. Contacts occur over an extended period of time making it possible for trust and a common sense of purpose to develop. Courts and community Collaboration: Limits of Prudence and Ethics Embarking on a court and community collaboration takes most courts and most communities into uncharted territory. The experience of successful court and community collaborations suggest broad limits within which collaboration should emerge and proceed. 1. Court and community collaboration does not occur at the expense of ultimate court control over court operations and decisions in individual cases. Court and community collaboration can not violate the constitutional and statutory framework within which the judicial branch operates. Each court and community collaboration should define in advance the areas of autonomy being retained by the court and areas of autonomy being retained by the participating community organizations. By definition, however, collaborations involve some sharing of power between the court and the community. 2. Community participation should not be limited to specific individuals or groups. The ‘community’ should be defined in the most inclusive sense possible. Participation by organizations and individuals drawn from all racial, ethnic and income groups should be actively and continuously pursued. 3. Obtaining support and funding for particular court and community collaborative ventures should not violate judicial ethical canons. Non-governmental funding and sponsorship for a court and community programs should be collected and administered in a way that does not link program results to any particular interest group. 4. Court and community collaborations should not result in the unfair distribution of power and influence among community participants. 5. Court and community collaborations should not proceed without regular monitoring of their effectiveness. When possible, an independent, outside evaluator should be retained for this purpose. The criteria for terminating a collaborative program should be specified at the start and reviewed periodically. 6. Court budgets and the allocation of judicial and staff time should not unduly restrict the potential for meaningful participation in court and community collaboration.