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PROBLEM SOLVING AND THE AMERICAN BENCH:
A NATIONAL SURVEY OF TRIAL COURT JUDGES*
DONALD J. FAROLE, JR.
This article presents the results of a nationwide survey of more than 1,000 trial court judges
concerning the potential to apply specialized “problem-solving court” practices more broadly
in conventional court settings. Specifically, we examine judges’ practices and perceptions related to problem solving in the courts. The survey results demonstrate broad support for problem-solving methods among trial court judges throughout the country—the vast majority holds
attitudes consistent with key principles of problem-solving justice and expresses a willingness
to employ problem-solving methods in various cases and court settings. Judges also identified
a number of potential obstacles to the more widespread use of problem-solving methods. The
survey results have implications for how judicial training and education efforts might proceed.
n recent years, individual courts in jurisdictions across the country have begun to
redefine their role in the administration of justice, moving beyond the neutral resolution of legal disputes to intervention in the individual and social problems that
underlie them. They have done so primarily through the vehicle of specialized courts
dedicated to discrete problems such as addiction, domestic violence, and mental illness—issues that, unresolved by traditional adjudication and punishment, will return
litigants to court time and again. While widely known for their “problem-solving”
focus, these specialized courts share a number of other unique elements, including
enhanced information (staff training on complex issues like domestic violence and
drug addition, combined with better information about litigants, victims, and the community context of crime); community engagement; a collaborative approach to decision making; individualized justice (using risk- and needs-assessment instruments to
link offenders to community-based services, where appropriate); accountability (compliance monitoring, often through ongoing judicial supervision); and a focus on outcomes through the active and ongoing collection and analysis of data (Wolf, 2007).
There is now a growing body of research to indicate that drug courts and perhaps
other “problem-solving courts” are indeed successful in improving outcomes for defendants and communities. In particular, adult drug courts have been demonstrated to sig-

I

* This research was supported by an award from the Bureau of Justice Assistance, U.S. Department of Justice. I
thank Kim Norris and Preeti Puri Menon from BJA for their support and assistance at all stages of the project.
Francine Byrne and Yueh-Wen Chang from the California Administrative Office of the Courts provided assistance
in drafting the survey. I also thank Greg Berman, Julius Lang, and Mike Rempel from the Center for Court
Innovation for feedback on earlier version of the article. Any opinions and interpretations are those of the author.
They do not necessarily represent official position of the Bureau of Justice Assistance. For correspondences, please
contact Donald J. Farole, Jr., Center for Court Innovation, 520 8th Avenue 18th Floor, New York, NY 10018,
dfarole@courts.state.ny.us.

THE JUSTICE SYSTEM JOURNAL, VOL. 30, NUMBER 1 (2009)

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nificantly reduce recidivism among substance-abusing defendants.1 Yet the limited
jurisdiction and eligibility restrictions of these specialized courts prevent them from
reaching more than a small percentage of the defendants and litigants who might
benefit from them. Thus, innovators in the field have begun to explore how to institutionalize and expand problem-solving innovations to reach a greater number and
variety of defendants, litigants, and cases—whether through the proliferation of
specialized courts or through the application of their core principles and practices in
conventional court settings.
A 2000 resolution of the Conference of Chief Justices and Conference of State
Court Administrators would seem to endorse the latter approach. The resolution
advocated for “Encourag[ing], where appropriate, the broad integration over the next
decade of the principles and methods of problem solving courts into the administration of justice to improve court processes and outcomes while preserving the rule of
law, and meeting the needs and expectations of litigants, victims, and the community”
(Becker and Corrigan, 2002). The conferences reaffirmed this resolution in 2004.
How problem-solving methods might be integrated in conventional court settings has only recently begun to receive attention from justice system representatives
and researchers. The available literature is varied, and consists largely of descriptive
accounts chronicling individual judges’ perspectives or personal attempts to apply
problem solving in conventional court settings (e.g., Bamberger, 2003; Casey and
Rottman, 2000). A related literature considers how judges and lawyers might apply
therapeutic jurisprudence, defined as a normative legal theory regarding the potential
of law to contribute to therapeutic outcomes, in various contexts (e.g., Abrahamson,
2000; Wexler, 2000). Finally, others have considered opportunities and challenges to
institutionalizing specialized problem-solving courts (e.g., Berman, 2004; Fox and
Wolf, 2004).
To further explore these issues, the California Administrative Office of the
Courts and Center for Court Innovation initiated a research partnership to address the
nature and feasibility of expanding the practice of problem solving in conventional
court settings. In 2003 and again in 2005, focus groups and interviews were conducted among current and former problem-solving-court judges in California and New
York State, as well as with other stakeholders (primarily prosecutors, defense attorneys,
probation officers, and treatment providers). The studies addressed which problemsolving principles and practices are more easily transferable to conventional courts and
1 Although it is premature to offer a definitive assessment of newer problem-solving court models, a consensus
has emerged regarding the efficacy of adult drug courts in reducing recidivism (Wilson, Mitchell, and Mackenzie,
2006; Government Accountability Office, 2005; Goldkamp, 2003; Harrell, 2003). For example, Wilson, Mitchell,
and Mackenzie (2006) reported that thirty-seven of forty-two completed studies found lower recidivism rates
among drug-court participants than comparison groups of otherwise nonparticipating defendants. A random
assignment study of the Baltimore City Treatment Court (Gottfredson, Najaka, and Kearley, 2003) and a study of
six New York State drug courts (Rempel et al., 2003) both reported recidivism reductions that extended up to
three years after the initial arrest, although the magnitude of reductions varied across courts. Others, however,
caution that it remains unclear which drugcourt components (other than judicial involvement) are more or less
critical to the model’s overall success (Marlowe, DeMatteo, and Festinger, 2003).

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what barriers might impede wider application of those principles and practices (Farole
et al., 2005, 2004; Farole, Puffet, and Rempel, 2005).
Among the many themes to emerge in the focus groups, four are of note for this
research. First and most important, a critical barrier to wider adoption of problem solving may be the judicial philosophies of general bench judges. The challenge, focusgroup participants said, is that many of their colleagues are unreceptive to problem
solving, and even those who are receptive are often uninformed. The consensus among
participants was that most judges’ conception of the judicial role is inconsistent with
problem-solving practice. Focus-group participants contrasted the “traditional” judicial role (“deciding cases,” not “solving problems”) with a more problem-solving, collaborative judicial philosophy (see also Hanson, 2002).
Second, focus-group participants suggested that problem-solving methods of
judging may be more appropriate and more readily applied in some cases and court
contexts than in others. In addition to criminal cases, family- and juvenile-court settings were singled out as particularly appropriate for problem solving, since these court
settings (particularly family court) tend to be less adversarial by nature, and judges in
these courts may be more receptive to problem solving due in part to self-selection into
these assignments.
Third, focus-group participants argued that judges newer to the bench would be
more receptive to problem solving. They viewed problem solving as a “learned behavior” and younger judges, less set in their ways, could be more easily “won over” (Farole
et al., 2005:69). Finally, focus-group participants suggested that even judges amenable
to problem solving would face several obstacles when attempting to employ these
methods, with heavy caseloads and a lack of support staff and services perceived as the
most daunting obstacles.
The purpose of the current study is to test the accuracy of these appraisals. We
present the results of a nationwide survey designed to assess the practices and perceptions of all trial court judges, the vast majority of whom have never served in a problem-solving court. The specific objectives of the survey were a) to investigate judges’
current attitudes and practices with respect to problem-solving methods of judging; b)
to assess judges’ willingness to make greater use of problem-solving practices in nonproblem-solving court assignments and to identify conventional court settings that
might be seen as especially amenable to problem-solving practices; and c) to identify
potential obstacles to the more widespread adoption of problem-solving methods in
conventional court settings.

METHODOLOGY
To measure judges’ attitudes and practices regarding problem-solving justice, a nationwide survey was conducted between April and September 2007 among a representative sample of 1,019 trial court judges. The sample included judges sitting on the
bench of a state trial court of general, limited, or special jurisdiction and was drawn

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from the 2007 edition of The American Bench, the most comprehensive nationwide list
of judges. To ensure regional representation, judges in the sampling frame were stratified by U.S. Census Region. We then used a proportionate stratified random-sampling
method to obtain a sample representative of the geographic location of judges.
Surveys were mailed to the selected judges. To maximize the response rate,
judges were given several options to complete the survey: to return the survey by mail,
complete an online questionnaire, or arrange a telephone interview (94 percent of
respondents returned the survey by mail; no judge chose the telephone option). The
survey achieved an overall response rate of 50 percent. Results of the entire survey are
statistically significant with a margin of error of ± 3 percent. For example, if 50
percent of survey respondents provide a particular answer to a question, we have 95
percent confidence that the actual population percentage falls between 47 percent and
53 percent (all tests of statistical significance were conducted at the .05 level). Note
that the margin of error increases when looking at differences in responses to the same
question across subgroups. The margin of error can also vary across specific questions.
Throughout this report, differences in findings (e.g., across questions or across subgroups) are discussed only if they are statistically significant.
A key analysis of interest is to examine survey responses based on the type of
cases judges most commonly hear, since focus-group participants emphasized that
problem-solving practices may be more appropriate in certain cases and courts than in
others. Judges were presented with a list of ten case types and asked which they most
commonly hear in their current assignments. For purposes of analysis, the ten types
were placed into one of three broad categories based on distinctions that emerged from
the focus groups:
1. Adult criminal: felony criminal or misdemeanor criminal;
2. Juvenile and family law: juvenile (delinquency, status offense), child welfare
(protective, custody), family cases (divorce, paternity), and domesticviolence protection orders; and
3. Other civil: housing, probate matters, traffic violations, and other civil
matters.
A substantial minority of judges, when answering the relevant survey question,
did not identify the most common case type on their docket but merely checked all of
the case types that they handle. Therefore, all analyses based on the case type most
commonly heard rely solely on the surveys for which we have a valid measure
(n=751).

DESCRIPTION OF THE SURVEY SAMPLE
Characteristics of survey respondents are described in Table 1. Available data demonstrates that respondents are representative of the entire trial court judge population
with respect to geographic location (U.S. Census Region) and gender, although data is

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Table 1
Characteristics of Survey Respondents
Gender
Male
Age (Mean)

77%
57 Years

Years As Judge
Less Than 5 Years
6-10 years
11-19 years
20 or more years

22%
23%
37%
19%

Most Common Case Type*
Adult criminal
Juvenile and family
Other civil

58%
21%
21%

Race/Ethnicity
White
African-American
Hispanic
Other

88%
5%
2%
5%

Location (U.S. Census Region)
Northeast
South
Midwest
West

16%
37%
26%
21%

* Among those with a valid case type measure (N=751).

not available to determine how representative the respondent sample is with respect
to other characteristics.2

A NOTE ABOUT INTERPRETING SURVEY RESULTS
To make an informed assessment of the findings, the reader should be aware of two
potential sources of bias that arise in all surveys that measure individual attitudes.
First, it is unclear the extent to which survey respondents are representative of all
judges in terms of their attitudes toward problem-solving approaches. It is possible, for
2 Geographic location: 16 percent of respondents are from the Northeast, which made up 19 percent of the overall sample; 37 percent from the South (35 percent of sample); 26 percent from the Midwest (25 percent of sample); and 21 percent from the West (21 percent of sample). Gender: 77 percent of survey respondents are male,
which is statistically equivalent to the overall trial court judge population (76 percent male, based on the Gender
Summary Ratio in The American Bench).

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example, that those who responded to the survey may be more receptive than nonrespondents to problem-solving methods, which could skew the findings in favor of problem-solving approaches. Note, however, that it is also possible that those keenly interested in the topic—both supportive and unsupportive—are more likely to self-select
into the survey, a phenomenon particularly common in mail surveys (e.g., Farnworth,
Bennett, and West, 1996). If this were the case, the findings may be skewed not in
favor of problem-solving approaches but rather in favor of extreme (vis-à-vis moderate) views on the topic. In an attempt to alleviate biases that might arise from selfselection, the cover letter that accompanied the survey questionnaire made no reference to “problem-solving” methods of judging; it instead framed the topic more generally by asking judges to participate in a survey about the “judicial role” and “judging
practices.”
A second area of potential bias is that some judges may provide what they perceive as socially desirable responses in favor of problem-solving approaches. As with
self-selection effects, it is not possible to quantify whether and to what extent a socialdesirability bias exists. There is, however, reason to believe its impact may be minimal,
since virtually all respondents chose to participate via the mail survey. It is widely
accepted that there is less potential for social-desirability bias in mail surveys than in
telephone or in-person surveys because of the absence of an interviewer in the former
(e.g., Aquilino and Losciuto, 1990).

TRIAL COURT JUDGES’ ATTITUDES AND PRACTICES
Problem solving can be conceptualized as both a general approach toward judging as
well as the application of specific judicial practices. Accordingly, judges were asked a
series of questions regarding both their attitudes and their practices to assess the
extent to which they currently embrace a problem-solving orientation. The results presented in this section reflect questions posed early in the questionnaire, before any specific reference to “problem-solving” methods was made in the survey.
Attitudes Toward Judging. Judges were asked to rate the importance of several aspects
of trial court judging (see Table 2). Not surprisingly, virtually all believe it “very important” to “ensure legal due process” (98 percent) and “maintain judicial independence”
(94 percent). Of note is emphasis placed on maintaining independence—later findings
will show that, for some judges, concern about maintaining the neutrality of the court
is viewed as a potential obstacle to more widespread use of problem-solving methods.
Most also believe it very important to “render decisions that protect public safety” (63
percent).
Other principles, including some directly relevant to problem-solving approaches, are less likely to be rated “very important.” Four in ten (37 percent) think it very
important to “render decisions that assist litigants.” Just 17 percent believe it very
important to “adopt a proactive role in case resolutions” and 13 percent to “obtain
community input about the court system.” Note, however, that majorities believe each
at least “somewhat important.”

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Table 2
Importance of Various Aspects of Judging *
Very/
Very
Somewhat Somewhat
Important Important Important
Ensure legal due process

98%

1%

99%

Maintain judicial independence

94

5

99

Render decisions that protect public safety

63

28

91

Render decisions that assist litigants

37

43

80

Move cases rapidly to resolution

33

62

95

Follow case-processing timelines

27

57

84

Adopt a proactive role in crafting case resolutions

17

54

71

Obtain community input about the court system

13

54

67

* Arranged in order based on percent “very important.” Other choices given were “not
too important” and “not at all important.” The complete question wording can be found in
the Appendix.

Judges were also asked to rate the importance of various factors when deciding
cases (see Table 3). “Precedent” (91 percent rated it “very important”) topped the list,
with “common sense” (65 percent) and “public safety” (50 percent) also likely to be
cited as very important. Other factors were rated somewhat less important.
Nevertheless, 70 percent of judges believe the individual needs of a litigant are either
a “very important” (17 percent) or “somewhat important” (53 percent) factor. Half (53
percent) also believe the community consequences of a decision are important
(although only 7 percent rate it “very important.”) Most judges do not believe public
expectations to be important—only 1 percent felt it a “very important” decision-making factor and 21 percent “somewhat important.”
In problem-solving courts, judges are the final authority on case disposition, but
they must also make decisions in collaboration with attorneys, case managers, and others (see Figure 1; the complete question wording can be found in the Appendix).
When asked about judicial decision making, a substantial minority (42 percent)
believe that “judges should make decisions with the collaborative input of others,”
although most (52 percent) think that judges “should make decisions on their own.”
This finding indicates a lack of consensus among trial court judges as to the
appropriateness of collaborative decision making. This is consistent with themes that
emerged in our focus-group research, where several participants noted that even some
judges who embrace the problem-solving concept may have difficulty accepting
changed decision-making roles. Indeed, others have noted that the traditional concept
of the judicial role is perceived as a central barrier to the spread of the idea of a more
collaborative approach to justice.

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Table 3
Importance of Various Aspects of Judging *
Very/
Somewhat Somewhat
Very
Important Important Important
Precedent, when clear and directly relevant

91%

7%

98%

Common sense

65

32

97

Public safety

50

41

91

The judge’s view of justice in the case

28

48

76

The individual needs or underlying
problems of the litigant

17

53

70

Expert opinion

7

71

78

The community consequences of a decision

7

46

53

What the public expects

1

21

22

* Arranged in order based on percent “very important.” Other choices given were “not too
important” and “not at all important.” The complete question wording can be found in the
Appendix.

In the focus groups, many judges argued that a preference for punishment over
rehabilitation is generally inconsistent or incompatible with a problem-solving
approach (see Figure 2, the complete question wording can be found in the Appendix).
When asked about the goal of the criminal justice system, far more judges believe that
the “more important” goal is “to treat and rehabilitate offenders” (58 percent) rather
than “to punish offenders” (33 percent). 3 This finding should not be interpreted to
mean that respondents choosing rehabilitation as more important place no value on
punishment, or vice versa. The results do, however, demonstrate a general preference
for rehabilitation- over punishment-based approaches in criminal cases. Judges in juvenile and family assignments (69 percent) are more likely than those in adult criminal
(57 percent) and other civil (50 percent) to choose treatment and rehabilitation as
more important.
The survey findings presented thus far begin to challenge the notion that there
is widespread philosophical opposition to problem-solving approaches to judging. The
majority believe it at least somewhat important to consider the individual needs of
litigants when making decisions. Most also generally favor a rehabilitation- rather than
punishment-based orientation for the criminal justice system, and many (although not
3 Although punishment and rehabilitation are not necessarily incompatible goals, judges were posed with a
“forced choice” question—they were asked to choose one response to indicate which is more important.

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Figure 1
Judicial Decision Making

Judges should
make decisions
with the
collaborative
input of others

Judges should
make decisions
on their own,

52%

42%

Don’t know, 7%

Figure 2
More Important Goal of Criminal Justice System

Judges should
make decisions
on their own,

To punish
offenders,

33%

58%

Don’t know, 9%

a majority) indicate a preference for collaborative decision making. The general orientation of many judges appears to be if not fully consistent with, then at least not in
opposition to, key principles of problem-solving justice.
Problem-Solving Practices. In addition to assessing judges’ attitudes, the survey also
asked judges how often they currently engage in a variety of specific practices common
in most problem-solving court models (see Table 4).
Four in ten (42 percent) report that, during the past year, they “often” “followed
the recommendation of a treatment agency staff member when making a decision in a
case.” One in three say they “based a decision on information about the individual
needs or problems of a litigant” (33 percent), “offered verbal praise to a litigant for

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complying with a court mandate” (33 percent), “ordered a litigant to drug or mental
health treatment” (32 percent), “posed questions directly to litigants in court” (32 percent), and “set regular in-court review dates to monitor a litigant’s compliance with a
court mandate” (31 percent). Fewer report often having “sanctioned a litigant … for
failure to comply with a court mandate” (20 percent) or “proposed a case disposition
or sentence not offered by the attorneys of record” (11 percent).
Some differences emerge in the frequency of self-reported practice based on the
types of cases judges most commonly hear. Not surprisingly, a larger percentage of
judges hearing adult criminal cases report often ordering drug or mental-health treatment (39 percent compared to 33 percent for juvenile/family and 14 percent for other
civil) and sanctioning litigants (21 percent compared to 14 percent for both juvenile/family and other civil)—these practices are most suitable in a criminal-court context. Judges hearing juvenile and family cases are especially likely to report having
posed questions directly to litigants (41 percent compared to 32 percent for other civil
and 30 percent for adult criminal) and having offered verbal praise for compliance with
a court order (40 percent compared to 30 percent for adult criminal and 21 percent
for civil). Finally, judges most often hearing civil cases are far less likely than others to
report having based decisions on the individual needs of litigants (18 percent compared to 44 percent for juvenile/family and 40 percent for adult criminal) and to have
followed treatment recommendations (29 percent compared to 50 percent for juvenile/family and 46 percent for adult criminal). These findings suggest that certain cases
and court contexts may provide greater or lesser opportunity to engage in certain specific problem-solving practices.
It may appear that the percentages of judges indicating that they “often” engage
in various problem-solving practices are high. This may reflect, in part, survey respondents’ inclination to provide socially desirable responses and to overestimate the frequency with which they take certain actions. However, the findings are also consistent
with themes that emerged in the focus groups. Participants in several focus groups
commented that many problem-solving practices are already applied on general court
calendars, albeit informally and unsystematically:
Some courts simply make … treatment plans[s] informally, make treatment
plans a part of the conditions of probation, and schedule regular court reviews
so that they’re overseeing it … The treatment process is very informal … It’s
just the judges’ way of doing business … I think that in mainstream courts
informally much of this is going on (Farole et al., 2005:11).
Indeed, use of practices common in problem-solving court models does appear
limited. Judges, on average, report “often” engaging in just more than two (mean=2.4)
of the eight practices about which they were asked. Just 27 percent often engage in
four or more of the practices. In other words, consistent with themes that emerged in
our focus groups, many judges currently use problem-solving practices, but in a limited and piecemeal fashion.

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Table 4
Current Judging Practices
Practice

Often

Followed the recommendation of a treatment agency staff
member in making a decision in a case

42%

Based a decision on information about the individual needs
or problems of a litigant

33

Offered verbal praise to a litigant for complying with a court
mandate

33

Ordered a litigant to drug or mental-health treatment when
not required to by statute

32

Posed questions directly to a litigant in court

32

Set regular in-court review dates to monitor a litigant’s compliance
with a court mandate

31

Sanctioned a litigant short of imposing a final sentence or outcome
for failure to comply with a court mandate

20

Proposed a case disposition or sentence not offered by the
attorneys of record

11

*“Often” was defined in the survey as 40% or more of cases. Other response options
included “sometimes (10-39%),” “rarely (1-9%),” and “never (0%).” The complete
question wording can be found in the Appendix.

PROBLEM-SOLVING METHODS OF JUDGING
After being asked about attitudes and specific practices they engage in on the bench,
judges were then asked a series of general questions about problem-solving methods
of judging. To ensure a common understanding, the following definition of “problem
solving” was provided in the survey:
Methods of judging that aim to address the underlying problems that bring
litigants to court. Such methods could include the integration of treatment or
other services with judicial case processing, ongoing judicial monitoring, and a
collaborative, less adversarial court process.
The findings indicate strong support for problem solving, as defined above,
among trial court judges (see Figure 3, the complete question wording can be found in
the Appendix). Seventy-five percent either “strongly” (39 percent) or “somewhat” (36
percent) approve of using problem-solving methods in their current assignment. By

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Figure 3
Approval of Applying Problem-Solving Methods
in Current Assignment
Strongly
approve

39%

Somewhat
approve

36%

Neither
approve nor
disapprove

13%

Somewhat
disapprove

6%

Strongly
disapprove

4%

0%

10%

20%

30%

40%

50%

contrast, only 10 percent expressed disapproval of using these methods. Judges who
most commonly hear civil cases (69 percent) are slightly less likely than those who
most often hear juvenile and family (78 percent) and adult criminal (73%) cases to
“strongly” or “somewhat” approve of such methods in their current assignment.
Nevertheless, large majorities in all court settings indicate support for problem-solving
approaches.
In the focus groups, several participants suggested that judges newer to the
bench would be more receptive to problem-solving methods. However, the survey
findings reveal no significant difference in approval of problem-solving methods based
on tenure on the bench. While a slightly higher percentage of judges on the bench less
than 5 years (79 percent) strongly or somewhat approve of problem-solving methods
than judges on the bench 6 to 19 years (75 percent) or 20 or more years (74 percent),
the differences are not statistically significant. Overall, support for the principles of
problem solving is widespread among all judges, both more and less senior.
There appears to be not only a high level of support for problem-solving methods, in principle, but also a belief among many bench judges that they currently employ
such methods (see Figure 4, the complete question wording can be found in the
Appendix). Nearly seven in ten (69 percent) say that “problem solving,” as defined in
the survey, describes their current judging practice either “very well” (22 percent) or
“somewhat well” (47 percent). This should be understood in light of findings, presented earlier, that a large percentage of trial court judges report engaging in at least some
of the specific practices common in problem-solving court models. Note that judges
who believe problem solving describes their current practice either “very well” or
“somewhat well” report, on average, “often” engaging in about three (mean=2.7) of
the eight practices; those who believe it describes their practice “not too well” or “not

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Figure 4
How Well ProblemSolving Describes Current Judging Practice
Very
well

22%

Somewhat
well

47%

Not too
well

23%

Not at all
well

7%

0%

10%

20%

30%

40%

50%

at all well” report often engaging in less than two (mean=1.5) of the specific practices.
A larger percentage of judges hearing juvenile and family cases believe problem
solving describes their judging practice “very well” or “somewhat well” (75 percent,
compared to 65 percent for adult criminal and 64 percent for civil). This is understandable since, as focus-group participants recognized, these court settings already
encourage problem-solving court practices (“the best interests of the child”):
The rules [in juvenile court] are already kind of written to incorporate a lot
of [problem-solving court practices]. There is already a rule that says it shall
be non-adversarial to the maximum extent possible . . . [and] that says the
well-being of the child, the minor, treatment needs and all of those take
precedence over any issue (Farole et al., 2004:32).

Judges were posed with two questions asking them to identify which types of
cases are, and are not, appropriate for problem-solving methods.4 Many of the responses to the open-ended questions lacked the level of specificity to permit systematic
analysis of all findings. However, some findings are of note. Family cases—cited by half
(50 percent) of respondents—were by far the most often-mentioned category cited as
appropriate for problem-solving methods, a finding consistent with what was suggested by participants in our focus groups. Fifteen percent indicate that either “most” or
“all” types of cases were appropriate for problem-solving approaches. By contrast, less
than 1 percent say no type is appropriate.
When asked which case types are inappropriate for problem-solving approaches,
“civil” cases (20 percent) was the most common response. One in ten (11 percent)
4 The questions about case types were open-ended—respondents were allowed to answer in their own words
rather than choosing from preset categories.

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mention criminal cases generally as inappropriate, and another 9 percent specify that
only serious or violent criminal cases were not suitable for problem-solving approaches. One in five judges (20 percent) feel there is no category of cases unsuitable to these
methods.

POTENTIAL OBSTACLES TO USING PROBLEM-SOLVING METHODS
In the focus-group research, judges and other stakeholders identified a number of
obstacles to the more widespread use of problem-solving methods in conventional
court settings (see Table 5). Many of these potential obstacles were presented in the
survey, and judges were asked to identify which apply to them in their current assignment. Most commonly cited, by far, is a “lack of support staff or services”—half (51
percent) agree that this is a barrier to the more widespread use of problem-solving
methods. A second tier of relatively often cited barriers includes “heavy caseloads” (29
percent), the possibility that “problem-solving compromises the neutrality of the
court” (25 percent), the “need [for] additional knowledge or skills” (24 percent), and
the fact that “cases on my calendar are not appropriate for problem-solving” (19
percent). One in five (18 percent) judges feel that none of the obstacles apply to them.
The findings provide important insights as to what are, and are not, perceived as
significant obstacles to the more widespread use of problem-solving methods, as well
as in which court settings those methods might be most appropriate.
Limited Resources. The emphasis placed on lack of support staff and heavy caseloads
in conventional courts echo a prominent theme from the focus-group research, as
exemplified by one participant’s comment:
When you leave treatment court . . . you don’t have time for the individualized attention to each defendant, you don’t have access to the wide array of
services, [and] you are under a great deal of pressure to move cases. . . . In
some places . . . the concern is not what are you doing for the defendant, but
what are you doing about reducing your caseload, and you don’t have the
same kind of pressure in drug courts or [other] problem-solving courts
(Farole et al., 2004:37).

In our focus groups, participants offered various suggestions about how judges
might overcome, or at least deal with, problems raised by limited resources and caseload pressures. One possibility is to obtain additional resources, perhaps by borrowing
resources from existing specialized courts or creating central structures within each
court building that would provide resources for all defendants. Others suggested a
“triage” approach that selects only those cases most in need of or most likely to benefit from a problem-solving approach.
(In)appropriate Cases. The findings suggest juvenile and family assignments may hold
particular promise for the more widespread adoption of problem solving practices.
Judges who most often hear juvenile and family cases—who are more likely to say
problem solving describes their current judging practice—are less likely to cite the

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Table 5

Obstacles to More Widespread Use of Problem-Solving Methods
Obstacle
Lack of support staff or services

51%

Heavy caseloads

29

Problem-solving compromises the neutrality of the court

25

Need additional knowledge or skills

24

Cases on my calendar are not appropriate for problem solving

19

Problem-solving methods are soft on crime

7

Attorneys would oppose it

6

Problem-solving methods are not effective

6

I do not agree with problem-solving methods

4

My colleagues on the bench would oppose it

4

None of these

18

Note: Percentages do not add up to 100% because respondents were
permitted to cite multiple factors.

inappropriateness of using problem-solving methods as an obstacle than are those most
often hearing adult criminal or civil cases (11 percent for juvenile- and family-court
judges compared to 22 percent for both adult criminal and civil).
Opposition to Problem-Solving Methods. Only 4 percent say that not supporting
problem-solving methods is a reason for not using them more often, providing further
support for the conclusion that the vast majority of judges do not have a broad philosophical opposition to problem-solving approaches.
Punishment-Based Approaches in Criminal Cases. Earlier findings showed that a substantial minority of judges (33 percent) identify punishing offenders as a “more important” goal of the criminal justice system than treating and rehabilitating offenders.
However, the vast majority of judges also believe that a preference for punishmentbased approaches in criminal cases is not an obstacle to more widespread use of problem-solving practices—only 7 percent cite the belief that problem-solving methods are
“soft on crime” as an obstacle. Even among those who identify punishment as the more
important goal, just 12 percent cite this as an obstacle. Most judges do not appear to
believe problem-solving justice is incompatible with the need to punish criminal
offenders.

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Training and Education. One of the more commonly cited obstacles to the greater use
of problem-solving methods is the need for additional knowledge and skills. Judges not
only recognize the need for additional training but also appear receptive to learning
more. Another question in the survey asked about their willingness to learn more
about various topic areas relevant to problem-solving practice in many contexts. Fully
86 percent are “very interested” or “somewhat interested” in learning more about
mental illness and treatment, 85 percent about substance abuse and addiction, and 79
percent about domestic violence. 5

CONCLUSIONS
The survey offers encouraging news for those interested in integrating problem-solving methods in more traditional court settings. The picture that emerges is one of
broad support for problem-solving methods by trial court judges throughout the country. Large majorities express a willingness to consider applying them in various cases
and court settings. There is even a belief among many judges that they currently
engage in activities common in problem-solving courts. In our focus groups, participants suggested a lack of support for the concept of problem solving among trial court
judges. The survey results do not support this hypothesis and suggest that focus-group
participants underestimated the level of support for problem-solving justice among
those sitting in conventional court assignments. Survey respondents did, however,
identify a number of perceived obstacles to the more widespread adoption of problemsolving methods, including limited resources and the need for additional training and
education, a finding that supports a theme that emerged in our focus groups.
Implications for Judicial Training and Education. The findings are encouraging but,
of course, translating support for a general approach to judging into changed and effective practice remains a challenge. As participants in our focus groups recognized, training and education (e.g., developing courses on problem-solving and using them at judicial training and new-judge orientations) are key to changing practice. Our survey
findings have implications for how training, education, and other outreach efforts
might proceed.
First, and perhaps most important, training and education might best be focused
on the “nuts and bolts” of problem-solving methods and practices—teaching new
practices, enhancing skills—more so than on promoting a general approach to judging
which most judges already appear to embrace. Efforts might include introducing judges
to specific practices and approaches that they may not be aware of or currently implement (for example, adopting a proactive role by attending team meetings or speaking
directly to defendants, involving treatment and other service providers in the court
process, and setting in-court review dates to monitor litigants’ compliance with a court
mandate), 6 and educating them about how these practices might be most effectively
5
6

The other response options given were “not too interested” and “not at all interested.”

For a more in-depth discussion of the core practices and approaches of problem-solving courts that differ from
conventional courts, see Farole et al. (2004).

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employed and in which case settings. Training and education might also address when
problem-solving methods may be more or less appropriate and how they may be
employed in such a way that does not compromise the neutrality of the court—thus
addressing other areas of concern and perceived obstacles.
Second, the results suggest particular opportunities to apply problem-solving
approaches in family- and juvenile-court settings, a finding supportive of another
hypothesis that emerged from the focus-group research. Judges in these court settings
are somewhat more supportive of problem-solving approaches and practices than are
judges in other assignments—likely due in part to self-selection into these assignments.
Most survey respondents also often cited family cases as appropriate for problem-solving approaches. Efforts specially focused on these court settings may be among the
more effective methods of enhancing problem-solving practice.
Finally, the survey provides no support for the hypothesis—broadly discussed in
the focus groups—that younger judges are more likely to embrace the problem-solving
concept than are those who have been on the bench a longer time. There is widespread support, at least in principle, regardless of tenure. Certainly, new-judge orientations may provide an excellent venue for training and education—but this ought not
to be the only venue, as more senior judges also support problem-solving approaches.
(This does not necessarily mean, however, that younger judges ought not to be a primary focus of training and outreach efforts. As focus-group participants suggested,
judges newer to the bench are likely less set in their ways, so developing and refining
practices earlier in their career may be easier than changing the behavior of more-senior judges.)
Of course, it remains an open question for some as to whether problem-solving
approaches ought to be encouraged in conventional court settings. Criticisms of specialized problem-solving courts—for example, that they compromise the neutrality of
the court or raise due-process concerns—may also apply to the use of problem-solving
methods outside specialized court settings. Others may argue that the application of
these methods in a more piecemeal fashion in conventional courts would be less effective than applying the “full” model in a specialized court setting. Nevertheless, while
these questions remain, the results of this survey do demonstrate that judges from a
variety of regions and a variety of local court cultures are receptive to integrating problem-solving methods into a range of conventional court settings in an effort to improve
the quality of justice nationwide. jsj

REFERENCES
Abrahamson, S. S. (2000). “The Appeal of Therapeutic Jurisprudence,” 24 Seattle University
Law Review 223.
Aquilino W. S., and L. Losciuto (1990). “Effects of Interview Mode on Self-Reported Drug
Use,” 54 Public Opinion Quarterly 362.
Bamberger, P. S. (2003). “Special Series: Problem Solving Courts and Therapeutic
Jurisprudence: Specialized Courts: Not a Cure-All,” 30 Fordham Urban Law Journal 1091.

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67

Becker, D., and M. Corrigan (2002). “Moving Problem Solving Courts into the Mainstream: A
Report Card from the CCJ-COSCA Problem Solving Courts Committee,” 39:1 Court
Review 4.
Berman, G. (2004). Think Piece: The Hardest Sell?: Problem-Solving Justice and the Challenges of
Statewide Implementation. New York: Center for Court Innovation.
Casey, P. M., and D. B. Rottman (2003). “Problem Solving Courts: Models, Commonalities, and
Trends: The View from the United States.” Prepared for “Problem Solving Courts: An
International Perspective,” Psychology and Law International, Interdisciplinary
Conference, July, Edinburgh, Scotland.
Farnworth, M., K. Bennett, and V. M. West (1996). “Mail vs. Telephone Surveys of Criminal
Justice Attitudes: A Comparative Analysis,” 12 Journal of Quantitative Criminology 113.
Farole, D., N. Puffett, and M. Rempel (2005). “Collaborative Justice in Conventional Courts:
Stakeholder Perspectives in California.” Report submitted to the California
Administrative Office of Courts (AOC).
Farole, D., N. Puffett, M. Rempel and F. Byrne. (2005). “Applying Problem-Solving Principles
in Mainstream Courts: Lessons for State Courts,” 26 Justice System Journal 57.
— (2004). “Opportunities and Barriers to the Practice of Collaborative Justice in Conventional
Courts.” Report submitted to the California Administrative Office of Courts (AOC).
Fox, A., and R. Wolf (2004). The Future of Drug Courts: How States Are Mainstreaming the Model.
New York: Center for Court Innovation.
Gottfredson, D., S. Najaka, and B. Kearley (2003). “Effectiveness of Drug Treatment Courts:
Evidence from a Randomized Trial,” 2 Criminology and Public Policy 171.
Goldkamp, J. (2003). “The Impact of Drug Courts,” 2 Criminology and Public Policy 197.
Government Accountability Office (2005). “Evidence Indicates Recidivism Reductions and
Mixed Results for Other Outcomes.” United States Government Accountability Office
Report to Congressional Committees.
Hanson, R. (2002). “The Changing Role of a Judge and Its Implications,” 38:4 Court Review 10.
Harrell, A. (2003). “Judging Drug Courts: Balancing the Evidence,” 2 Criminology and Public
Policy 207.
Marlowe, D. B., D. S. DeMatteo, and D. S. Festinger (2003). “A Sober Assessment of Drug
Courts,” 16 Federal Sentencing Reporter 153.
Rempel, M., D. Fox-Kralstein, A. Cissner, R. Cohen, M. Labriola, D. Farole, A. Bader, and M.
Magnani (2003). The New York State Adult Drug Court Evaluation: Policies, Participants,
and Impacts. New York: Center for Court Innovation.
Wexler, D. B. (2000). “Just Some Juvenile Thinking About Delinquent Behavior: A
Therapeutic Jurisprudence Approach to Relapse Prevention Planning and Youth
Advisory Juries,” 69 UMKC Law Review 93.
Wilson, D., O. Mitchell, and D. MacKenzie (2006). “A Systematic Review of Drug Court Effects
on Recidivism,” 2 Journal of Experimental Criminology 459.
Wolf, R. (2007). Principles of Problem-Solving Justice. New York: Center for Court Innovation.

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APPENDIX
WORDING OF SELECT SURVEY QUESTIONS
The full wording of select survey questions are presented below, with a reference to the
relevant table or figure in which the survey results are presented.
Table 2
In general, how important is it for trial court judges to do each of the following?
(Response options: “not at all important,” “not too important,” “somewhat important,”
“very important”)
a) Ensure legal due process
b) Maintain judicial independence
c) Move cases rapidly to resolution
d) Adopt a proactive role in crafting case resolutions
e) Render decisions that assist litigants
f) Obtain community input about the court system
g) Follow case-processing timelines
Table 3
How important should the following factors be to a judge in deciding a case? (Response
options: “not at all important,” “not too important,” “somewhat important,” “very
important”)
a) Precedent, when clear and directly relevant
b) What the public expects
c) The community consequences of a decision
d) The individual needs or underlying problems of the litigant
e) Expert opinion
f) The judge’s view of justice in the case
g) Public safety
h) Common sense
Figure 1
Which of the following is a more important goal of the criminal justice system? (Please
mark one circle)
a) To treat and rehabilitate offenders
b) To punish offenders
Figure 2
Which of the following statements most closely represents your view? (Please mark
one circle)
a) Judges should make decisions on their own
b) Judges should make decisions with the collaborate input of attorneys and
other partners

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Table 4
During the past year, in approximately what percentage of all cases you heard, did you
do each of the following? (Response options: “never [0%],” “rarely [1-9%],” “sometimes
[10-39%],” “often [40% or more]”)
a) Proposed a case disposition or sentence not offered by the attorneys of record
b) Ordered a litigant to drug or mental-health treatment when not required to
by statute
c) Based a decision on information about the individual needs or problems of a
litigant
d) Followed the recommendation of a treatment agency staff member in making
a decision in a case
e) Posed questions directly to a litigant in court
f) Set regular in-court review dates to monitor a litigant’s compliance with a
court mandate
g) Sanctioned a litigant short of imposing a final sentence or outcome for failure
to comply with a court mandate
h) Offered verbal praise to a litigant for complying with a court mandate
Figure 3
In general, to what extent do you approve or disapprove of applying problem-solving
methods in the types of cases you currently hear? (Response options: “strongly disapprove,” “somewhat disapprove,” “neither approve nor disapprove,” “somewhat
approve,” “strongly approve”)
Figure 4
In your opinion, how well does problem solving, as defined above, describe your
current judging practice? (Response options: “not at all well,” “not too well,” “somewhat
well,” “very well”)