The Case for a New Court: Are community courts just a shiny gloss on a broken system?

Monday Magazine | June 19, 2008
Richard Weinberg is a popular man around Victoria. On the New York State supreme court justice’s recent visit to the Garden City, he received heartfelt hugs from mayor Alan Lowe, was fêted by business leaders and made his rather assertive presence felt in the local press. He was even asked to run for office in the November civic election.

Weinberg presides over Manhattan’s Midtown Community Court—a model for dispensing justice that has become de rigueur across the United States over the last 15 years as prisons there burst their bars with convicts sentenced to hard time for minor offences. It’s also a model that a growing body of local leaders seem keen to adopt as a measure to address downtown social problems.

In recent years mayor Alan Lowe has paid a visit to Weinberg’s courtroom, as has B.C.’s attorney general Wally Oppal. A contingent of downtown boosters, including city councillor Charlayne Thornton-Joe, also made the pilgrimage to Manhattan to see Weinberg in action while attending a conference in the Big Apple.

“When we left, we were hooked,” Thornton-Joe told the audience at the Downtown Victoria Business Association annual general meeting last Friday where Weinberg was the keynote speaker.

But the community court model is not without critics, who argue it is a surefire way to criminalize the poor for infractions they have no choice but to commit and continues to utilize an outdated legal framework that fails to address underlying systemic social inequalities that are often the catalyst for crime.

Weinberg, however, is staunch in his conviction that community courts are good for the accused and good for the community.

“Community court is a problem-solving court,” says Weinberg, launching into his well-rehearsed explanation. “Its intent is the following—to preserve, protect and defend the community. [Community courts] provide meaningful rehabilitation opportunities for the people that come before us, to get them help, so they can turn their lives around and be productive, healthy citizens interacting with the rest of the community.”

The Midtown court was established in 1993 as a step toward rebuilding a once-prosperous borough of New York that had fallen into decay when drug dealers and prostitutes replaced the traditional tax base. Its proponents credit it with cleaning up the streets—bringing tourists, businesses and residents back to the core.

In Weinberg’s court, defendants come before the judge on what he refers to as “quality-of-life” crimes, which is to say, infractions the judge views as detrimental to the vibrancy of his neighbourhood—that means prostitution, drug use, graffiti, public urination, petty theft and illegal vending to name a few. Upon entering his courthouse, defendants are immediately sent for an interview with one of Weinberg’s resource co-ordinators who review the nature of the crime, the past criminal history of the defendant and learn about their life and what brought them to commit the offence for which they stand accused.

This information, along with suggestions of possible alternatives to jail time, is then passed along to the judge who determines what service the defendant could use to set them straight. Sometimes it’s counselling, sometimes it’s drug treatment, sometimes it’s job training or housing and sometimes its simply hitting the streets with a broom. In return for a guilty plea to the charges, jail time—and a criminal record—are dodged for those who agree to abide by the conditions Weinberg sets.

The DVBA recently hosted a public forum on the community court system at city hall, which drew a sizable crowd of the curious, but also a contingent of those who wonder what impact it could have on the city’s marginalized populations.

A common criticism levelled against the community court model is that it criminalizes poverty, forcing people to plead guilty to crimes of necessity. Take for instance, someone like Victoria’s David Arthur Johnston, who has come up against the legal system time and again in his quest to secure citizens’ right to sleep freely on public land. Given the depth of his ideological commitment to that cause, its doubtful he would surrender the fight, and Weinberg would have no choice but to jail him.

“There’s nothing coercive about what I do,” says Weinberg. “It makes no difference to me whether somebody takes a plea or not. I get the same low salary whether they take a plea or not. I don’t get paid for each disposition. The only reason I like somebody to get into the program is to help someone whose actions affect the community. It makes no difference to me.”

Further to the above criticism is the argument that it turns judges who preside over community courts from interpreters of the law into therapists and social workers—a departure from their historical role as impartial arbiters.

This critique of the problem-solving justice model was argued most cogently by Colorado supreme court judge Morris Hoffman in a 2000 academic article titled “The Drug Court Scandal” where he wrote, “In their mad rush to dispose of cases, drug courts are risking the due process rights of defendants and turning all of us—judges, prosecutors and public defenders alike—into cogs in an out-of-control case-processing machine.”

Weinberg bristles at the suggestion that he is overstepping his boundaries as judge.

“Your definition, respectfully, is traditional,” Weinberg says. “That’s yesterday’s news. The old way didn’t work and the statistics bear me out. Consequently, what that means is, you have to do something new.”

Canada’s West Coast has already tested the waters of problem-solving courts. A new community court in downtown Vancouver is scheduled to begin hearing cases this summer. Prior to this, Vancouver dabbled with a problem-solving court in the form of the Drug Treatment Court of Vancouver (DCTV) that saw non-violent drug crimes tried before a judge who offered drug treatment in lieu of jailtime if defendants agreed to a plea.

However, a 2005 federal government analysis of the DTCV showed the model to be wanting in positive results as, “Only 14 percent of participants completed the program.The remainder (65 percent) withdrew voluntarily, were discharged by the crown and did not continue, or were asked to leave (20 percent).”

In addition, the DCTV report showed, “Almost all (80 percent) participants tested positive for heroin, cocaine or other drugs within six months.” Finally, “the comparison group analysis indicated that there were no statistically significant reductions in new charges and convictions among program participants.”

Considering many defendants who would come before a community court in Victoria would arrive there on drug-related offences, it might prove useful to heed the warnings of UVic medical school professor Dr. John Anderson, who co-authored a 2003 paper with ethicist Tim Christie calling into question the foundations on which problem-solving courts—like drug courts and community courts—are built.

“It is impossible to highlight the conceptual flaws of drug treatment courts without noting that current drug laws, in both the U.S. and Canada, may contribute to some of the harm addicted people suffer and they may create the circumstances that cause people to break the law,” wrote Anderson and Christie.

Further, the pair argue, “Likewise, if safe drugs were attainable through a properly regulated source there could be a reduction in the criminal activity that is now required to obtain them.”

Finally, Anderson and Christie observe, “Because of these basic misunderstandings, drug treatment courts have the unintended and unethical consequence of punishing a person if he or she cannot recover from his or her addiction.”

A recent report from the International Centre for Prison Studies showed that even with the implementation of so-called problem -solving courts throughout the country, the U.S. now houses 25 percent of the world’s prisoners, despite having less than five percent of the world’s population. The incarceration rate for American adults is one in 100.

“I guess that’s the fundamental question—why would we want to emulate what has been done in the United States?” says Anderson. M

Monday Magazine

Founded in 1975 to provide a critical voice in Victoria's political and cultural communities, Monday Magazine continues to shake British Columbia's conservative capital city with tell-it- like-it-is features and reviews. Targeting educated, active adults and Victoria's growing youth market, Monday...
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