Abstract
This article examines how a community court in the United States framed its mission to a diverse population of stakeholders. Drawing from 11 months of ethnographic data, I show how community courts’ embrace of both punitive and therapeutic goals help the courts appeal to a variety of audiences. I argue that by adopting a flexible mission which allows for both punishment and treatment, community courts are better able to create and maintain organizational legitimacy. This article not only adds to the literature on the flexibility of punishment logics, but it also brings a new focus by considering the organizational utility of mutable penal goals.
Introduction
Community courts are a particular kind of problem-solving court, which exclusively handle low-level, quality-of-life crimes. Community courts maintain that so-called “victimless crimes” (such as littering, graffiti, and public drunkenness) jeopardize the well-being of residents, businesses, and visitors of an area. Community courts subscribe to two main jurisprudential frameworks: punish low-level crimes meaningfully, harshly, and swiftly, and provide treatment for any issue perceived to cause an individual’s criminal offending. This dual framework of punishment and treatment allows community courts to be simultaneously “tough-on-crime” and therapeutic.
The dance between retributive and therapeutic orientations could leave community courts seemingly conflicted in their goals. Are community courts punitive or rehabilitative? 1 This is a key question because the growth of non-traditional courts requires support from a public whose views on justice are divided along political lines and determined by their personal and professional stakes in the criminal justice system (Nolan, 2001). Yet community courts themselves embrace both punitive and rehabilitative strategies, under the umbrella designation “problem-solving courts” (Berman and Feinblatt, 2005). This article illustrates how community courts negotiate their dual mission of punishment and treatment and shows how this negotiation helps community courts strategically maximize their organizational legitimacy.
I argue that community courts embrace a dualistic model of sanctioning because it is organizationally effective. Using data from a larger ethnographic study of one community court in a city in the United States, I show how community courts make legitimacy claims on the basis of the flexibility of their judicial model. In examining how the court interacts with key stakeholders in the community, we see that the court’s flexible mission is an organizational asset rather than a detriment. Other scholarship has pointed to the existence of multiple penal logics, focusing on how those logics impact decision making and sanctioning (Baker, 2013; Burns and Peyrot, 2003; Paik, 2011). This article adds to scholarship by focusing on how flexible penal logics operate at an organizational level. Drawing from the literature on organizational legitimacy, this article also argues that community courts’ flexible mission is a valuable asset, as it allows courts to draw on multiple sources of legitimacy.
Flexible Punishment
Scholars debate the content and goals of the United States’ contemporary criminal justice system. Some describe the current criminal justice system as more inhumane, detached, and punitive than in previous eras (Bottoms, 1995; Feeley and Simon, 1992; Garland, 2001; Harcourt, 2010; Simon, 1999; Wacquant, 2009). This “punitive turn” in the criminal justice system is characterized by a commitment to efficiency, risk management and cost-effectiveness over due process and adjudication. Many of these scholars argue that rehabilitative and emotive aspects of punishment have largely been eviscerated from the current penal system. Yet other scholars point toward the nuances of the contemporary criminal justice system, thereby counteracting the punitive grand narrative (Hannah-Moffat, 2005; Hutchinson, 2006; Matthews, 2005; O’Malley, 1999; Pratt, 2000; Robinson, 2008; Werth, 2013). The popularity of restorative justice practices, therapeutic jurisprudence, and the use of the risk/needs assessment and programming tools show that rehabilitation is actually alive and well in penalty (Hutchinson, 2006). Even practices considered to be inherently punitive may be more flexible, and imbued with meaning that suggests rehabilitative orientations (Hannah-Moffat, 2005; Robinson, 2008; Werth, 2013). These competing claims point us toward contradictions and tensions within criminal justice goals, values, and practices. These contradictions pose important challenges to more fully understand the current state of the criminal justice system.
Research on specialized courts is particularly well suited to describe the ways that multiple and, at times, contradictory logics are enacted. Specialized courts (sometimes called problem-solving courts) address a specific offender population with the goals of “making the punishment fit the crime … and the process fit the problem” (Berman and Feinblatt, 2005: 5). These specialized courts act as “hybrid organizations” (Baker, 2013) by combining punitive and therapeutic logics into the same judicial process. Drug courts, for instance, use 12-step programs to motivate addicts to get clean (Nolan, 2001; Tiger, 2012). Mental health courts require defendants to regularly meet with case workers who oversee a defendant’s medical treatment while under court supervision (Redlich, 2005). These specialized courts marry punitive and rehabilitative tactics with the understanding that both punishment and treatment, when deployed simultaneously, can work to solve root causes of offending.
Research that looks at specialized courts and other sites of multiple punishment logics 2 reveals a great deal about the processes and the implications of this form of justice. Some work highlights decision making in specialized courts, examining how court actors arrive at particular sanctions or presentation tactics, and how they determine which defendants deserve leniency and which deserve “tough love” (Baker, 2013; Paik, 2011). Decision makers use both rehabilitative and punitive understandings of their work to decide when, how, and why offenders should be sanctioned. Another body of work examines how the marriage of punitive and therapeutic logics creates a new kind of penal subject. This scholarship argues that agencies that both punish and rehabilitate create an offender disciplined through responsibilization tactics (Burns and Peyrot, 2003; Hannah-Moffat, 2005; Hutchinson, 2006; Werth, 2013). Offenders are expected to be accountable for their own rehabilitation, yet since they are not considered fully capable of doing so, they are deeply governed by criminal justice agencies. Punishment may then be less about producing people who desist from crime and more about resocializing people into productive self-regulating citizens (Hannah-Moffat, 2005; Hutchinson, 2006; Nolan, 2001; Tiger, 2012). These instances show how seemingly contradictory punishment goals and tactics are understood and debated in practice and how they produce particular kinds of control.
What is left to be uncovered is the utility of competing logics to criminal justice organizations themselves. If we consider the specialized court as an organization which seeks to garner support, maintain its existence, and ultimately proliferate, then we must ask why an organization would invoke two seemingly contradictory goals of rehabilitation and punishment. In addition to understanding how sites of multiple punishment logics arrive at sentencing practices and how those practices impact the offender, we can also examine how multiple punishment logics operate at the organizational level. We may consider these sites as agentic institutions that operate in their own organizational best interest. While competing logics and external pressures can sometimes create internal conflict, I argue that heterogeneous logics may also serve as an organizational asset.
Community Courts
Community courts, and other specialized courts in the problem-solving justice movement provide a rich site to study competing penal logics. Courts in the problem-solving justice movement adopt their sanctions, case processing, and bureaucratic structure to address a niche area of criminal offending. Though specialized courts address different problems and populations, they share certain features including a non-adversarial relationship between court staff, intensive supervision, voluntary participation, individualized justice, and integration of social services (Berman and Feinblatt, 2005; Fagan and Malkin, 2002; McCoy, 2003). Examples of kinds of specialized courts include mental health courts, drug courts, veterans courts, and domestic violence courts.
Community courts specifically focus on quality-of-life crimes, a focus that draws its inspiration from broken windows theory. Broken windows theory argues that small visible signs of disorder in a neighborhood will increase the rate and severity of crime, lower residents’ morale, and increase perceptions of local disorder and danger (Wilson and Kelling, 1982). Broken windows theory helped fuel the zero-tolerance policing strategies infamously adopted in New York City under Mayor Giuliani and Police Chief Bratton (Chesluk, 2007; Giuliani and Bratton, 1994; Greene, 1999). Broken windows theory and its attendant policing practices have been critiqued as being part of an overly punitive trend in criminal justice. Broken windows style policing has been said to criminalize poverty (Herbert and Brown, 2006; Smith, 2002) and widen the net of criminal justice supervision (Barr, 2001; Harcourt, 2001). In this light, community courts could be considered instrumental in this push toward punishment of low-level crimes, and increased criminal justice supervision.
However, other features of community courts could mark them as more rehabilitative than punitive. Community courts punish quality-of-life offenders by sanctioning them to “pay back” the community while simultaneously aiming to address “social issues” related to crime (e.g. mental illness, substance abuse, and anger management). Offenders who meet the community court’s requirements, whether through community service, treatment, or other sanctions, have their case wiped from their public criminal record. 3 Community courts also “bridge the gap between communities and courts” (Feinblatt and Berman, 1997: 4). Some community courts arrange “impact panels” in which offenders, residents, and business owners meet to discuss quality-of-life crimes. Community courts may run food drives, manage book donations for prisoners, and host HIV testing. Community courts then combine legal discourses with discourses about community, restorative justice, quality-of-life, and personal transformation. These practices are atypical for courts in general, and do not conform to descriptions of the criminal justice system as bureaucratic, detached, and overly punitive.
Specialized courts operate under the banner of therapeutic jurisprudence, a legal philosophy that argues encounters with “the law itself can be seen to function as a kind of therapist or therapeutic agent” (Winick, 1997: 185). As opposed to liberal legal philosophies which argue that a court must be objective, distant, and impartial, therapeutic jurisprudence advocates for courts to consider defendants as individuals who require individualized attention (Wexler and Winick, 1996). As such, therapeutic jurisprudence affords a great deal of judicial discretion. While proponents argue that this framework increases rehabilitative outcomes, critics point to the coercive and paternalistic aspects of therapeutic jurisprudence. Some critics argue that therapeutic jurisprudence allows for an inappropriate degree of state surveillance and control, as individualized justice may involve judicial interventions into one’s family, work, and home life (Malkin, 2003; Nolan, 2009). Hannah-Moffat and Maurutto (2012: 211) argue that therapeutic jurisprudence “legitimizes the roles and relevance of new practices and kinds of knowledge as well as new modalities of penal power”. Due process rights may be violated in the name of rehabilitative goals. Community courts and many other specialized courts require defendants to enter a guilty plea in order to have their case supervised at the specialized court. The pre-adjudicative nature of cases at specialized courts may coercively dissuade defendants from pursuing other legal options. Finally, therapeutic jurisprudence as applied to defendants with substance abuse issues raises ethical questions regarding the degree of consent and confidentiality that defendants are able to exercise (Seddon, 2007).
Organizational Legitimacy
Organizational legitimacy describes “the extent to which the array of established cultural accounts provide explanations for [an organization’s] existence” (Meyer and Scott, 1983: 201). Suchman (1995: 582) presents a typology of organizational legitimacy: pragmatic legitimacy is sustained when constituents believe that an organization benefits them directly, moral legitimacy describes when stakeholders believe that an organization is engaged in upright and worthy activities, and cognitive legitimacy is the understanding that an organization is “necessary or inevitable […] based on some […] cultural account”. Legitimacy is a kind of currency that allows organizations to achieve particular outcomes. Organizations may use legitimacy as a way to garner support from a particular audience, whether that support is active or passive (DiMaggio, 1988; Suchman, 1995). Legitimacy enables organizations to persist for long periods of time, and affords organizations greater esteem and credibility (Suchman, 1995). Organizations with legitimacy may engage in behavior that is not endorsed by public opinion, yet still retain their legitimacy (Tyler and Mitchell, 1994).
While community courts have existed in the United States for approximately three decades, they are still a relatively new organization, and as such, they must build organizational legitimacy. While established organizations have “taken for granted” legitimacy, new organizations must convince other institutions, structures, and individuals that they should exist. In order to build legitimacy, new organizations must explain that they are important and innovative while still deploying recognizable justifications for being (Ashford and Gibbs, 1990; Friedland and Alford, 1991; Ruef and Scott, 1998; Suchman, 1995; Suddaby and Greenwood, 2005). They offer “legitimating accounts” (Creed et al., 2002) which link an organization’s logic and practice to existing cultural views (Meyer and Rowan, 1977). Given that more established organizations may have more power than others, new organizations can emerge and succeed through effective symbolic association and distinction (DiMaggio and Powell, 1991; Emirbayer and Johnson, 2008).
While much of the literature argues that organizations must have a single clear logic to create and maintain legitimacy (Baron et al., 2001; Lawrence and Suddaby, 2006), some scholars argue that organizations with dynamic or mutable identities may have greater success over time. Organizations that have a dynamic identity may be better suited than organizations with rigid identities to foster innovation, take advantage of opportunities, withstand constraints, and secure resources (Friedland and Alford, 1991; Jackson, 2005; Seo and Creed, 2002). For instance, Peyrot (1991) finds that community-based drug treatment programs use a “chameleon organizational strategy” to access funding sources not specifically reserved for drug-related behaviors. Organizations with multiple logics possess a kind of agency, which allows them to actively use and exploit contradictions in institutional logics with dexterity (Seo and Creed, 2002; Sgourev, 2011; Suddaby and Greeenwood, 2005). Organizations can simultaneously operate in different contexts which privilege certain actions and ideas over others, and ably move between contexts (Greenwood et al., 2008).
While community courts certainly have clearly outlined practices, they operate with multiple logics of punishment. Indeed, their goal to both enact retribution and treatment allows for such flexibility that the community courts may emphasize or downplay either feature according to an audience’s perceived preferences. The dual model of punishment – treatment as punishment for those who want it, and jail as punishment for those that do not want it – is justified and causes little organizational conflict. This dualistic notion of crime and criminals serves community courts well as they market themselves to a wide variety of stakeholders. The court can emphasize punitive or therapeutic aspects of its daily case processing according to how it reads a given audience.
This focus on dualistic logics and organizational legitimacy, necessitates some caveats. First, while this study draws on scholarship on flexible punishment from multiple western industrialized countries, the data and the discussion are grounded on the United States criminal justice system. Next, this article’s attention to the hybrid nature of specialized courts hits on one of the primary critiques of specialized courts: that multiple punishment logics are problematic. The blending of therapeutic and legalistic frameworks may dilute both or result in a power imbalance (Malkin, 2003; Paik, 2011). Nolan (2001) argues that problem solving courts privilege efficiency and utilitarian concerns at the price of core jurisprudential values. Therapeutic punishment is often paternalistic and coercive, and is deeply connected to social control of problem populations. These critiques are empirically grounded, insightful, and meritorious. By focusing on the usefulness of multiple penal logics at the organizational level, this article does not dismiss or counter these critiques, but instead examines a different piece of the puzzle. This article aims to delineate the process of using heterogeneous logics for organizational legitimacy. It does not contend that this process is unproblematic.
These caveats withstanding, this study shows how flexibility is an important aspect of creating and maintaining organizational legitimacy. While community courts offer a new approach to criminal justice, they deploy established cultural ideas that make the model appealing to a broad audience with divergent interests, opinions, and connections to the criminal justice system. I argue that these competing goals are integrated in community courts in a complementary yet flexible way that enables community courts to draw upon multiple sources of legitimacy in order to mobilize support and resources from distinct groups that make up “the community”.
Methods
The data for this article come from a larger ethnographic study of one community court, which I call City Court, located in a US city. 4 Data were collected over an 11-month period. For eight months, I worked as an unpaid intern at City Court. The judge and managerial staff allowed me to conduct research at the court in exchange for free labor. As an intern, I was able to watch the court proceedings, attend staff meetings, occasionally help the social service department, and engage in community outreach. I also attended meetings City Court had with local block associations, social service providers, police officers, and visiting students and professionals. My internship allowed me to establish rapport with court staff and to hold informal field interviews. After exhausting the time-period allotted for internships, I returned to the court for three months to observe the court process as a member of the public. However, as the court staff and I were friendly, 5 I would often go back into their offices to talk, I continued to attend meetings, and I informally assisted staff as needed.
I recorded field notes in every meeting, and for every case I witnessed in court. I used open coding (see Strauss and Corbin, 1990) to develop emerging themes during research. For court cases, I coded with an attention to the cases’ place within the docket (i.e. what cases proceeded and followed the case), and any time court members privately discussed a case. In meetings, I coded with an eye toward how specific cases were discursively mobilized in meetings, and how court officials related broader issues of community, the court’s mission, and available resources to the meeting agenda.
Examining the court as someone who worked at the court, and then as a “member of the public”, allowed me to thoroughly understand the daily practices of City Court. I was able to see how private discussions before court about particular cases were translated to the public presentations of court in session. For the purposes of this article, the ability to attend meetings with court staff with various stakeholders showed how flexible and adaptable the community court model was to a wide variety of audiences.
Findings
Appealing to the community
In appealing to residents and business owners in the city, City Court highlighted its mission to make the city a safer and more desirable place to live. The court did so by publicizing community service projects, processing quality-of-life offenders, and community outreach programs. The explicit involvement and recruitment of “the community” in criminal justice efforts is not solely under the purview of community courts. Beginning in the late 1970s and continuing today, criminal justice enterprises became increasingly connected to non-state resources, with programs like community policing, neighborhood watch groups, and collaborations between law enforcement, and local activists or religious leaders (Crawford, 1997; Garland, 1996; Lacey and Zedner, 1995). Crawford (1997: 7) argues that some of these shifts are rooted in cultural ideas about the community, “the very woolliness of which nurtures and sustains its appeal”. City Court actively involved itself in the community and drew from community discourses as a way to claim and maintain organizational legitimacy.
The court participated in activities which made it visible to the community. The court distributed a quarterly newsletter to residents and local organizations. It also volunteered time, space, and labor to help distribute supplies for the city’s marathon. It ran toy drives and hosted health fairs. Perhaps one of the most telling things that City Court did to maintain community relations was to regularly attend community meetings. In those meetings, the court manager and judge emphasized an open door policy by saying things like, “you can call us, and when you call me, I’ll return your call”, and “if [you] have issues that we can deal with through the court that will help your neighborhood […] within legal and ethical means […] we’ll do it”.
It was clear that residents cared about crime, particularly quality-of-life crime and punishment of offenders. One community meeting began with the leader asking attendees for “good news”, and all speakers offered stories about decreased crime and disorder. Yet sometimes community members’ goals seemed more oriented toward retribution and control. Nick, the court manager, said residents sometimes tell him, “Joe Smith got arrested on my street, and I want him in the stocks on the town green. Or we can stone him.” In some staff meetings, court employees stated that residents prevent the court from achieving therapeutic goals.
6
When appealing to audiences that preferred a more tough-on-crime approach, City Court often compared itself to the Superior Court, which typically handles more serious offenses: My saying has always been, “What do you think is truly harder? Having to come here and do three days of community service and go into an inpatient rehab. Or showing up at 9 in the morning and getting a nolle just because your charge isn’t big enough.”
In one particular community meeting this tension between a tough-on-crime approach and rehabilitation was well pronounced. During the meeting, a Police Lieutenant discussed the “real problem of recidivism in the city”, attributing recidivism to the city’s shelter system and early prison release. The Lieutenant said that the justice system was not working: “[j]ustice is like a revolving door, and [offenders] know how to play the game […] and that’s devastating to you’. He advocated a GPS tracking device for people who are released from prison early. All residents at the meeting appeared to be in favor of the device, except for one who grumbled that it was only a way to reduce paperwork. The closest thing to a discussion of rehabilitation was when someone suggested that people released from prison be electronically monitored for longer periods of time and be forced to get jobs. 7 The Lieutenant replied that such a question should be posed to a social service agency because, “[i]t’s not my job’. This approach is very different from the form of justice advocated by community courts, in which the community as a whole works to solve crime.
Given the expectations of community members, the City Court representative strategically emphasized its punitive operation and beautification projects during the community meeting. After a resident thanked the police officers and the court for getting a prostitute off his street, Nick said that, of the prostitutes who were recently at City Court, one was sent to jail for six months and the others are on a list to get into programs. He quickly added, “[b]ut you know, tonight they’re all in jail’. See below for the court manager’s response to a question about how many people the court puts in jail: about 80 percent of our caseload is one-time offenders, who we’ll never see again. They come in, do their community service, and then they’re done. But the other 20 percent are the repeat offenders. Some want help and we give it to them. Some want help but can’t, and they’d prefer to serve a life sentence three months at a time.
The court manager ended his presentation with a discussion of all the places that the court’s community service crews had recently cleaned, getting nods of recognition from the residents. He closed by suggesting that residents call the court’s hotline to suggest areas in need of community service.
The court attempted to gain legitimacy in the resident meeting by conforming to the discourses that were relevant in that setting. The court’s flexible mission to punish as well as to treat, served the court well here. The court manager spoke to matters of incapacitation and quality-of-life, issues which were clearly emphasized by the residents themselves. He downplayed City Court’s therapeutic programming by framing treatment as wholly about the individual; those who “want help” get help, while others “serve a life sentence three months at a time”. This characterization of rehabilitation as a matter of individual desire and accountability is indicative of the approach of problem-solving courts (Nolan, 2001; Paik, 2011; Tiger, 2012).
Retribution and treatment with social service providers
While City Court downplayed treatment in meetings with residents and business owners, in meetings with social service groups, court representatives sometimes emphasized this part of its work. City Court created and maintained connections with social service providers in much the same way as it did with community members. Court personnel, mostly the court manager and judge, attended meetings for local domestic violence and homeless shelters. They also maintained an open door policy with shelter directors, emphasizing that they should always feel free to call: I think a lot of people are also shocked to see a court at meetings […] traditional courts […] don’t go out to these meetings. They don’t work with many of these service providers, they don’t reach out, and they don’t answer the phone either. You know. The twain never meets. Now the twain is meeting with this court and their services. And we couldn’t do it without them.
City Court actively maintained relationships with social service providers as they have valuable knowledge and resources that City Court can utilize. While representatives for the state’s social services held hours in the court building, City Court ultimately wanted to expand on site services. Moreover, when the state cut budgets for both the court and for social service agencies, the court and social service agencies needed to find a way to get “more bang for [their] buck”. I was surprised to discover that two programs often used by the court, an out-patient drug treatment program and a mental health service provider, were introduced to court officials at these social service meetings. The court referred cases to these providers so frequently that I assumed the City Court had worked with these groups since its inception.
Sometimes, when representatives from the court met with social services providers, they emphasized treatment. At a shelter directors’ meeting, the court manager quietly listened to the shelter directors’ discussions about transitional housing, where to find cheap furniture, and who was applying for what grant. Toward the end of the meeting, he said: As you know, I’m from City Court, and I just want to let you know that you can call us when you need anything. If one of your guys is coming in to see us, and there’s anything that we should know, or anything we can do to help, don’t hesitate to give us a call.
The court manager did not discuss enforcement, incarceration, and the community service work of City Court. Instead, he focused on actively listening to shelter directors’ concerns to portray City Court as an ally. He barely mentioned anything about City Court, except to encourage staff at homeless and domestic violence shelters to perceive the court as a resource.
Later, on the walk back to the court, the court manager explained how and why City Court came to the shelter directors’ meetings: The first couple of times I went there, it was like they thought we were the enemy. We are a court, an enforcement agency, who tries to just lock up their guys. But after a while, I kept telling them that we have good social programs at the court, and if there is a way to keep [offenders] out of jail and put them in a program instead, that is what our goal is, really.
He also said that it is important to go to shelter meetings because, “[y]ou need to let them know you’re on their side”.
However some social service agencies liked working with City Court because the court had the ability to punitively sanction people. At the very end of a site visit to an inpatient drug treatment program, the judge asked the program director, “[w]hat can I do to make your job easier?” The director said she would like to be able to send noncompliant clients to jail, because they return more willing to cooperate (“[a]fter that, they are usually not a problem”). The judge excitedly said, “I would not mind that at all! I would love to do that. I want to do that more.”
This conversation was quite different from conversations with shelter directors, even though both groups are social service providers. In shelter meetings, City Court claims that it will do whatever it can to keep people out of jail; that the court really wants to get people into treatment. At the inpatient drug facility, the judge said that he would “love” to send people to jail for short stints, if that would help motivate compliance. Advocates and practitioners view specialized courts’ use of both “the carrot and stick” as an effective rehabilitation tool and integral to therapeutic jurisprudence. However, academic scholarship offers well-founded critiques of coerced treatment: the effectiveness of drug courts is still debated (see Lutze and Van Wormer, 2007; Tiger, 2012) and punitive accountability models demand total sobriety at the expense of alternative, policy, or harm-reduction models (Tiger, 2012). Coerced treatment also raises questions about defendants’ agency and choice (Seddon, 2007), and to what extent treatment is about criminal offending versus “responsible citizenship” (Kaye, 2013). However, these issues do not present an ethical dilemma for practitioners as this “enlightened coercion” (Tiger, 2012) paternalistically asserts that courts and social service providers best understand how to deal with issues of criminal drug use.
Issues of effectiveness and ethics withstanding, specialized courts’ ability to both punish and treat can be used as a discursive tool to garner favor, resources, and trust from integral extra-legal stakeholders. The community court model embraces both punitive and therapeutic sanctions. By hanging back and reading the room, court representatives glean which parts of the court’s mission would best appeal to the audience, and selectively present those qualities.
Combining punishment and personal transformation in practice
It is clear that when City Court representatives attended meetings of external organizations, they tailored the identity of the court to the interests of that particular audience. They aimed to form alliances with groups whose interests, solely in relationship to the court, preferred either punitive or rehabilitative sanctions. Within the daily work in the courtroom, City Court simultaneously performed its identities of being “tough on crime”, being concerned for the community, and encouraging personal transformation. In courtroom interaction, City Court does not simply say what it does, but instead it showcases how the court deploys both punishment and treatment. In the following examination of the “anti-underage drinking docket”, I show how City Court improvised within interaction to convey both messages to a carefully recruited audience of key stakeholders.
Across a two-month period, police officers charged 60 students from local universities with underage drinking. City Court processed each case with a continuance, meaning that all students would return to court. City Court specifically set aside one court session, termed the anti-underage drinking docket, for all the students to return to court. On each student’s initial court date, the judge instructed them to read a memoir about drinking, write an essay relating that book to their own lives, and bring the essay to the anti-underage drinking docket. City Court arranged various speakers to address the students: a representative from MADD (Mothers Against Drunk Driving), a forensic pathologist, a Dean of a university, and several community representatives. City Court also invited a journalist from the city’s main paper to cover the event.
The morning of the underage drinking docket, the room was filled to capacity. The court manager told me, “[w]e’re gonna put one guy in jail. He was drunk off his ass, not with this group. He’ll be example number one. He deserves it though.” The prosecutor started the day with, “example number one”, a white man who appeared to be in his mid-30s, escorted from lock-up in handcuffs and shackles. The defendant was “so intoxicated” that he broke his neighbor’s window trying to get inside “because he was convinced it was his house”. The judge matter-of-factly stated that the defendant will go to jail, set the continuance in two weeks, and issued a $50,000 bond. 8
After showcasing the case of “example number one” to instill fear of negative consequences the court proceeded to the students. The judge stated, “[t]he message should be that [the city] takes underage drinking very seriously”. The prosecutor explained various consequences that the students could have faced, had police officers pursued different charges. He said if students had been charged with constructed possession, they could be fined and lose their license to drive. Some of the students had fake IDs. The prosecutor explained, Being in possession of a fake ID is punishable by one to five years in jail, and it is a felony offense. You could lose many of your civil rights as a citizen, such as voting rights in some states.
Many of the students tested positive for drugs or admitted to using drugs. The prosecutor stated how drug possession charges could revoke any federal financial aid and student loans, “so unless you are independently wealthy, you would not be able to continue college”. The court did not officially sanction students with these charges; it instead threatened them with the potential consequences of their actions.
City Court publicly presented itself as tough on crime by strategically calling the drunk man who broke into his neighbor’s house as “example number one”, and outlining the harsh penalties that students could have faced. The docket opened with the explicit announcement that the city takes “underage drinking very seriously”. City Court used an opportunity from its routine proceedings – the man who broke into his neighbor’s house, and strategically placed his case immediately before the anti-underage drinking docket to convey that City Court was “tough on drinking-related charges”. City Court tempered this toughness with an emphasis on “paying back the community”. The students did not complete their sentence by simply attending court and submitting their essays; they were also ordered to complete 20 hours of community service at the Boys and Girls Club.
Next the judge invited several students to read their essays before the court. The judge asked the Dean of Students from the local university to pick the first speaker. He selected a young woman who cried while she read her paper. She said: We have opportunities many would kill for, and now I know all of my accomplishments can mean nothing in one instant. I do not completely regret everything because it has shown me that I need to focus on my future and my education. I am a good person. I am on the Dean’s list. I am family-oriented and I’ve done community service since I was six years old. I apologize to you, Your Honor, and to the court. I hope you can regain faith in young adults and our future.
When she finished reading, the judge told her to approach the bench and “give [her] a hug”. People in the audience clapped. Court staff wiped tears from their eyes or smiled broadly. The student’s essay so astutely conveyed the court’s message that the prosecutor joked, “[t]hat was a setup”. Other students read their essays, and the judge confirmed their moral worth (e.g. “you are a good person”, “you are a good son”) and invited each student to the bench for a hug. During each hug, the entire courtroom clapped and smiled.
Here we see City Court’s message of rehabilitation and personal transformation. In having the students testify that they have changed and have learned a lesson, City Court affirmed that the court model of personal transformation worked. The students were effectively claimed as having “learned a lesson” and “good”, thereby allowing them to be rewarded with praise and reintegrated into the community.
City Court organized the specialized docket for underage drinkers to build legitimacy. The court did not need to alter its sessions to accommodate such a large number of cases; it would have been easier to handle the cases on separate days. It did not need to invite community representatives and the press. These cases could have been handled like every other recurring offense at the court (for instance, City Court never held special “substance abuse” or “crimes by minors” dockets). Because City Court saw this as an opportunity to convey an image to the public, and garner support from community leaders, City Court specifically arranged this day as a public and publicized event. Of course, this event is easily marketable given the social location of those defendants involved. The anti-underage drinking docket involved mostly young white college students. Most had no previous criminal record. This defendant population was arguably selected for such a publicized event as they would be viewed more sympathetically than the more routine cases of young people using alcohol or drugs.
Perceptions of City Court
While this study focuses on the strategies the court uses to build organizational legitimacy, it is worth a detour to consider to what extent the community courts’ tactics result in perceptions of legitimacy to community members. I briefly turn to an evaluation of City Court conducted by an independent agency to consider the extent to which defendants, stakeholders, and residents actually bestow organizational legitimacy on City Court. The evaluation included exit interviews with over 150 defendants, one-on-one interviews with about 25 key stakeholders, and focus group interviews with approximately 40 community members. 9 There are two important things to note. First, the study was conducted prior to my fieldwork, so it is possible that perceptions changed over time. Second, I do not include a citation of the evaluation in order to maintain the anonymity of my research site.
The study showed that most defendants viewed the court favorably. An important aspect of the court’s legitimacy from the defendant’s perspective is judicial fairness. Tyler (1990) found that if people believe that they are treated fairly by legal authorities, they view these authorities as legitimate, and in turn are more likely to comply with judicial orders. This is even more pronounced in problem-solving courts which explicitly operate with the framework of therapeutic jurisprudence (McIvor, 2009). Almost all defendants in the study reported that City Court was a “good idea”, citing benefits to the community, fair sanctions, and punishment as a learning experience. This finding illustrates Suchman’s (1995) category of cognitive legitimacy, in which audience members perceive that the existence of an organization is worthwhile and plausible. Another subset of legitimacy, moral legitimacy, is illustrated in defendants’ reports of procedural fairness. Over 90 percent of surveyed defendants reported that they were treated “with respect”. However, almost a third of the defendants claimed that sentencing was unfair (they were not guilty, they were not allowed to explain the circumstances surrounding their arrest, and/or that their sentence was overly demanding). Still, these results reveal that the majority of defendants viewed the City Court as legitimate.
The evaluation also conducted interviews and focus groups with residents, business owners, community leaders, and police officers to measure their perceptions of City Court. Findings illustrate that stakeholders granted City Court pragmatic legitimacy, as respondents report immediate and direct benefits of the organization to its constituents (Suchman, 1995). Respondents claimed that City Court had made a positive impact by decreasing visible crime and promoting community efficacy around quality-of-life crimes. Some respondents reported that the court had dramatically increased their quality-of-life by handling cases that had been a persistent nuisance. For example, one respondent stated that he credited the community court with “a dramatic drop” in noise disturbances and littering. Respondents attributed these direct benefits as stemming from City Court’s ability to enact both punitive and rehabilitative sanctions on low-level crimes. Respondents cited the “teeth” and “bite” of the community court, arguing that City Court’s punishment practices promoted both general and specific deterrence with regards to quality-of-life crimes. Respondents also credited the court’s rehabilitative sanctions and ability to link defendants to social service providers with reducing crime and promoting community well-being, with one respondent describing the therapeutic aspects of City Court as its “most important feature”. Respondents therefore attributed improvements in quality-of-life and decreases in low-level crimes as directly stemming from the deterrent and therapeutic aspects of punishment at City Court. This evaluation found that residents, community members, and stakeholders perceived City Court as pragmatically legitimate, and attributed the criminal and communal benefits to the court’s ability to both punish and treat.
Discussion
The nature of specialized courts allows them to incorporate multiple and sometimes competing logics into the administration of justice (Baker, 2013; Fagan and Malkin, 2002; Malkin, 2003; Nolan, 2001; Tiger, 2012). Scholars have explored how multiple punishment logics hinder the execution of justice. Previous studies focus on the ways that multiple orientations present tensions and complications in decision making for individual cases (Baker, 2013; Paik, 2011; Tiger, 2012), or how these kinds of punishment agencies create new kinds of control (Burns and Peyrot, 2003; Hannah-Moffat, 2005; Hutchinson, 2006; Werth, 2013). These studies raise insightful and empirically grounded critiques of the specialized court movement.
By adopting an organizational framework, this study explored a different facet of multiple penal orientations: how flexible logics help specialized courts gain legitimacy. City Court appealed to groups that wanted a tough-on-crime approach by pointing out that the court required far more commitment and accountability from offenders than traditional court models. It aimed to please residents by highlighting community service efforts and zero-tolerance approaches toward quality-of-life crimes. City Court formed relationships with social service providers by emphasizing the court’s therapeutic goals, even when therapeutic goals could be served by punitive sanctions. By adopting a “problem-solving approach”, community courts can then incorporate “seemingly disparate logics […] into a coherent project” (Werth, 2013: 237).
Taking an organizational approach to punishment logic allows us to build on discussion of the meaning of punishment in contemporary society. First, this approach allows us to think about punishment as dynamic, flexible, and mutable (Hannah-Moffat and Marutto, 2012; Hutchinson, 2006; Matthews, 2005; O’Malley, 1999; Pratt, 2000: Robinson, 2008). Community courts are able to move deftly between punitive and therapeutic worlds, thereby painting a more complex and nuanced picture of criminal justice goals. Second, it allows us to consider criminal justice organizations as agentic. As Garland (1990) argues, punishment is a “cultural agent” which not only is shaped by culture, but also that actively shapes and changes broader cultural meanings. The case of community courts helps us consider how particular ideas about community, crime, and justice are disseminated by justice agencies.
An important consideration is the extent to which attempts for organizational legitimacy reproduce unequal power relations. City Court served a community comprised of groups with different or even competing agendas. City Court appealed to stakeholders on the basis of their legitimacy granting properties. Additionally, as illustrated by the anti-underage drinking docket, City Court treated some defendants with special consideration so as to maximize visibility and public support. While scholarship on organizational legitimacy agrees that new organizations must situate themselves in established cultural narratives, it should be acknowledged that these cultural narratives are deeply connected to already existing power relations (DiMaggio and Powell, 1991; Emirbayer and Johnson, 2008). While some narratives and position-takings are more closely associated with powerful groups, we should also consider how organizations agentically and strategically use power relations in legitimacy building tactics.
While this study focuses on organizational legitimacy strategies, it does not fully measure the causal relationship between the court’s legitimacy strategies and community members’ conference of legitimacy. Future research could more explicitly measure the degree to which stakeholders and community members grant specialized courts with legitimacy, with regards to the strategies deployed by specialized courts. One possible form this research could take is to examine changes in perceptions of legitimacy over time. As community courts and other specialized courts become increasingly common, they may be able to tap into the more staid legitimacy of traditional courts. Additionally, future research could examine if interactions with specialized courts directly impacts perceptions of legitimacy. A study could compare community members who interact with specialized courts with community members who do not interact with specialized courts. A pre-test/post-test design could illuminate to what extent interactions with specialized courts impact whether or not community members ascribe legitimacy to specialized courts.
Footnotes
Acknowledgements
The author thanks Claudio E. Benzecry, Miho Iwata, Melissa F. Lavin, Stacy Missari, James A. Wilson and anonymous reviewers for feedback on earlier versions of this article.
Declaration of Conflicting Interests
The author(s) declared no potential conflicts of interest with respect to the research, authorship, and/or publication of this article.
Funding
The author(s) received no financial support for the research, authorship, and/or publication of this article.