by Brooke McBride, J.D.

Foreword: Thank you to Dr. Tom Tyler, who recently presented at the University of Nebraska-Lincoln Symposium on Motivation and encouraged me to revisit the topic of procedural fairness and treatment courts, given current trends in declining perceptions of procedural fairness towards legal institutions.

Procedural Fairness and Problem-Solving Courts 

High rates of police contact, arrest, and incarceration experienced by Black Americans contribute to poor physical and mental health outcomes and increase the likelihood of future police contact.¹ Despite the overrepresentation of Black Americans in the criminal legal system—suggesting they would similarly be over-represented at all criminal legal system points—Black Americans are the least likely to be referred, admitted, and successfully complete specialized treatment courts.² One explanation for this may be that Black Americans may experience a police-associated, culturally sustained legitimacy deficit that negates the therapeutic aims of treatment courts.

Developed from a therapeutic jurisprudence framework,³ treatment courts have proliferated in part due to ideals that the courts can be therapeutic agents that can both reduce unintended consequences of system involvement for individuals most impacted, but also positively impact their psychological well-being. While treatment courts are modeled from principles of procedural fairness, and studies generally demonstrate participants perceive them more fairly than traditional court, national data do not reflect actual fairness in outcomes, but instead illustrates continued racial and ethnic disparities in access to treatment courts and their impact.

The powerful impact of procedural justice theory explains that poor perceptions of procedural fairness toward the legal system generally contributes to an ongoing culture of doubt amongst our most under-served citizens. Although research has well-documented the influence of Black Americans’ negative perceptions of procedural fairness towards law enforcement on subsequent arrests, we know much less about how perceptions influence outcomes in treatment courts. ⁴ 

Evidence suggests racial identity may influence specialty court admission and success rates, resulting in courts that predominantly serve White participants who are more likely to graduate than their Black peers.⁵ One explanation for this disparity could be that Black Americans experience more negative interactions with police, meaning they enter the court environment with lower perceptions of legal legitimacy, generally.⁶ Unfortunately, too many studies still fail to collect participant race data, or fail to appropriately disaggregate by race when reporting outcomes.⁷  

Of the little research available findings have been mixed; with some studies that suggested Black drug court participants have positive perceptions of procedural fairness in treatment court contexts,⁸ yet others indicated decreased perceptions.⁹ Examinations of racial differences in veteran’s and mental health courts are, thus far, similarly limited and contradictory.¹⁰ So while procedurally unjust policing may contribute to generally low legitimacy beliefs within Black American communities, undermining efforts to provide equal access to justice and potentially decreasing future compliance with legal authorities, there is a shortage of research evaluating the intersection of Black Americans’ experiences with police and specialty court success. 

Although there is evidence suggesting that problem-solving courts are effective in achieving compliance, there is significantly less evidence that they are effective for Black individuals specifically, even though Black individuals may benefit from the unintended consequences of treatment courts the most.

Despite the expansion of treatment courts and congressional calls for increased alternatives to detention, incarceration rates continue to soar even as overall crime rates have decreased.¹¹ Future studies should focus on clarifying the link between police interactions and outcomes in these courts. It is crucial to conduct further research to understand this complex, intersectional issue before further investment in these interventions. 

References

1. Bor, J., Venkataramani, A. S., Williams, D. R., & Tsai, A. C. (2018). Police killings and their spillover effects on the mental health of black Americans: a population-based, quasi-experimental study. The Lancet, 392(10144), 302-310.; Hawkins, D. S. (2022). “After Philando, I had to take a sick day to recover”: Psychological distress, trauma and police brutality in the Black community. Health communication, 37(9), 1113-1122.
2. Sibleyt, S. K. (2021). The Unchosen: Procedural Fairness in Criminal Specialty Court Selection. Cardozo L. Rev., 43, 2261; Smith, L., & Taxman, F. S. (2022). Access Differential: Comparing Problem-solving Courts and Probation. Drug Court Review, 12-21.; Cheesman, F. L., Marlowe, D. B., & Genthon, K. J. (2023). Racial differences in drug court referral, admission, and graduation rates: findings from two states and eight counties. Journal of Ethnicity in Criminal Justice, 21(1), 80-102.
3. Winick, B. J. (2013). Problem solving courts: Therapeutic jurisprudence in practice. Problem solving courts: Social science and legal perspectives, 211-236.
4. Nagin, D. S., & Telep, C. W. (2017). Procedural justice and legal compliance. Annual review of law and social science, 13, 5-28.; Reisig, M. D., Wolfe, S. E., & Holtfreter, K. (2011). Legal cynicism, legitimacy, and criminal offending: The nonconfounding effect of low self-control. Criminal justice and behavior, 38(12), 1265-1279.; Tyler, T. R., & Fagan, J. (2008). Legitimacy and cooperation: Why do people help the police fight crime in their communities. Ohio St. J. Crim. L., 6, 231.; Tyler, T. R., Fagan, J., & Geller, A. (2014). Street stops and police legitimacy: Teachable moments in young urban men’s legal socialization. Journal of empirical legal studies, 11(4), 751-785.
5. Heyen, K. (2021). Drug Court Discrimination: Discretionary Eligibility Criteria Impedes the Legislative Goal to Provide Equal and Effective Access to Treatment Assistance. Cardozo L. Rev., 43, 2509.; Steadman, H. J., Redlich, A. D., Griffin, P., Petrila, J., & Monahan, J. (2005). From referral to disposition: Case processing in seven mental health courts. Behavioral Sciences & the Law, 23(2), 215-226.
6. Sun, I. Y., & Wu, Y. (2006). Citizens’ perceptions of the courts: The impact of race, gender, and recent experience. Journal of Criminal Justice, 34(5), 457-467.
7. Canada, K. E., & Watson, A. C. (2013). “’Cause Everybody Likes to Be Treated Good” Perceptions of Procedural Justice Among Mental Health Court Participants. American Behavioral Scientist, 57(2), 209-230.; Gover, A. R., Brank, E. M., & MacDonald, J. M. (2007). A specialized domestic violence court in South Carolina: An example of procedural justice for victims and defendants. Violence against women, 13(6), 603-626.; Smith, L., & Taxman, F. S. (2022). Access Differential: Comparing Problem-solving Courts and Probation. Drug Court Review, 12-21; Kruse, L., & Bakken, N. (2023). Creating Legitimacy in a Diversion Court: Testing the Theoretical Framework of Procedural Justice and Therapeutic Jurisprudence. Drug Court Review.
8. Gottfredson, D. C., Kearley, B. W., Najaka, S. S., & Rocha, C. M. (2007). How drug treatment courts work: An analysis of mediators. Journal of Research in Crime and Delinquency, 44(1), 3-35.
9. Atkin-Plunk, C. A., & Armstrong, G. S. (2016). An examination of the impact of drug court clients’ perceptions of procedural justice on graduation rates and recidivism. Journal of Offender Rehabilitation, 55(8), 525-547.
10. Han, W., Matejkowski, J., & Lee, S. (2020). Racial variation in mental health court experiences and the associations of these experiences with recidivism. Criminal justice and behavior, 47(7), 808-828.; Atkin-Plunk, C. (2020). The Veterans Treatment Court Movement: Striving to Serve Those Who Served. 626-628. Taylor & Francis.
11. Urban Institute. (2016). Transforming prisons, restoring lives: Final recommendations of the Charles Colson Task Force on Federal Corrections. Urban Institute. Retrieved January 5, 2023, from https://www.urban.org/research/publication/transforming-prisons-restoring-lives; Alkon, C. (2019). Have Problem-Solving Courts Changed the Practice of Law?. Cardozo J. Conflict Resol., 21, 597.