This article is a response to Panel on Forgiveness in Criminal Law, and attempts to answer the following questions: Is there room for forgiveness in the criminal courts? If so, how does forgiveness manifest itself there?  The article explores this issue in terms of the opportunities for forgiveness provided by  problem-solving  courts

Denckla, Derek A.

Fordham University School of Law

Fordham Urban Law JournalVolume 27 | Number 5 Article 152000Forgiveness as a Problem-Solving Tool in theCourts: A Brief Response to the Panel onForgiveness in Criminal LawDerek A. DencklaFollow this and additional works at: https://ir.lawnet.fordham.edu/uljPart of the Criminal Law CommonsThis Article is brought to you for free and open access by FLASH: The Fordham Law Archive of Scholarship and History. It has been accepted forinclusion in Fordham Urban Law Journal by an authorized editor of FLASH: The Fordham Law Archive of Scholarship and History. For moreinformation, please contact tmelnick@law.fordham.edu.Recommended CitationDerek A. Denckla, Forgiveness as a Problem-Solving Tool in the Courts: A Brief Response to the Panel on Forgiveness in Criminal Law, 27Fordham Urb. L.J. 1613 (2000).Available at: https://ir.lawnet.fordham.edu/ulj/vol27/iss5/15FORGIVENESS AS A PROBLEM-SOLVINGTOOL IN THE COURTS:A BRIEF RESPONSE TO THE PANEL ONFORGIVENESS IN CRIMINAL LAWDerek A. Denckla*I have been invited to draft this response in order to provide anadditional perspective - centered on courts' role in providing for-giveness in criminal law. Let me begin by responding to the ques-tion posed to the panel: Can the criminal law make room forforgiveness? Like everyone on the panel that addressed this ques-tion, I, too, believe that the answer is a firm "yes." The simplicityof that question allows for an affirmative answer. What remains tobe explained, however, is how to answer some more pointed ques-tions on this issue: Is there room for forgiveness in the criminalcourts? If so, how does forgiveness manifest itself there? This re-sponse seeks to answer these questions generally by exploring theopportunities for forgiveness provided by "problem solving"courts.'Over the past decade, courts, administrators and judges, out offrustration with the pitfalls of "business as usual," have consideredand tested practices aimed at providing greater effectiveness andefficiency in the criminal justice system. One such solution hasbeen to develop court programs and courts address the significantnon-legal problems that arise along with the legal issues in a givencase.2 These "problem-solving" courts include drug courts, corn-* Fordham University School of Law, J.D. (1997), Columbia University, B.A.(1991). Mr. Denckla recently joined the Center for Court Innovation (the "Center"),the independent research and development arm of the New York State Unified CourtSystem, as a Senior Planner. This response draws upon the work the Center has un-dertaken to deepen public understanding of problem-solving courts. Formerly, he hasbeen a Skadden Fellow at the The Legal Aid Society and a Judicial Clerk for theHonorable Fred I. Parker, who sits on the U.S. Court of Appeals for the SecondCircuit.1. This response is not intented to provide an extensive or exhaustive essay intothe topic of forgiveness. Rather, this response is a commentary on the panel on for-giveness in the criminal law from a court-building perspectice that I have gainedthrough my work and research at the Center. Additional work should be undertakento investigate the gaps opened and questions raised herein. See Symposium, The Roleof Forgiveness in the Law, 27 FORDHAM URB. L.J. 1347 (2000).2. See Chief Judge Judith S. Kaye, Making the Case for Hands-On Courts, NEws-WEEK, Oct. 11, 1999, at 13.1613FORDHAM URBAN LAW JOURNAL [Vol. XXVIImunity courts, family treatment courts, mental health courts andgun courts. All of these courts can use the power and authority ofthe judiciary to change the behavior of litigants and even, in somecases, the behavior of governmental systems. In their various at-tempts to change the behavior of litigants, many problem-solvingcourts have hit upon the strategic use of forgiveness.I. THE COURTS AS A SOURCE OF FORGIVENESSAt first blush, it may seem that, of the various institutions thatcomprise the criminal justice system, the courts would be an un-likely source of forgiveness. The court's traditional role - throughthe person and the office of the judge - is to apply the law in a fairand impartial manner to the accused at trial and during sentencingand, in the absence of a jury, make factual findings that will deter-mine culpability. Based on this description, the court's ability toimpart forgiveness seems limited to showing mercy to a defendentby exercising discretion and, perhaps, reducing a sentence.For various political and social reasons, however, courts are be-ing forced to deal with a whole range of social, psychological andmedical issues that they have never had to face before and withwhich they have little or no expertise. For instance, a traditionalcourt is poorly equipped to help a substance-addicted person ob-tain treatment.3 Yet the research into drug courts suggests thatcourts have something unique to bring to the table when it comesto successful treatment and accessing other services: coercion.Without the coercive power of a court and its threat of potentialpunishment, social services agencies are usually unable to effec-tively treat substance-addicted or certain chronically mentally illpersons. Thus, when someone is accused of committing a crime,the courts often become the place where the accused's substanceaddiction is first identified as a serious problem, ripe for treatment.H. THE CREATION OF "PROBLEM-SOLVING" COURTSSweeping changes in the social structure of society have had adeep impact on the functioning of the criminal courts, causingjudges to re-think their roles and consider the place of problem-solving in the criminal justice system. At the same time, the public(such as the victim's movement) has been calling for the courts to3. Traditionally, criminal courts are meant to address the legal issues of a case.Courts are not designed nor are judges trained in treating the medial, social or psy-chological problems of defendants.1614FORGIVENESS IN CRIMINAL LAWsolve persistent social problems.' Like the prosecutors and defenseattorneys on the panel, judges and court administrators have grownfrustrated with "milling cases," "repeat players" -- defendants whoreturn to court again-and-again on the same charges - risingcaseloads and new and different types of cases that elude tradi-tional judicial responses.Problem-solving courts have not been associated with any partic-ular philosophy of the law. or jurisprudence. They tend to usewhatever works, borrowing from many new approaches to the lawthat have surfaced over the years. This search for new and moreeffective approaches to court procedures and practices is motivatedby the desire to make the court system more results-driven andoutcome-oriented. In general, however, problem-solving courtsshare the following five characteristics: (1) an expanded scope ofnon-legal issues are presented to the court; (2) the use of judicialauthority to solve both legal and non-legal problems that arisefrom an individual's case; (3) the consideration of outcomes that gobeyond merely applying the law, such as increased sobriety for ad-dicts; (4) increased collaboration between government and non-government partners to help achieve shared goals; and (5) themodification of traditional rules by casting judges and attorneys innew roles.Planners of problem-solving courts - particularly communitycourts - appear to have an approach that meshes with planners ofrestorative justice programs on many significant levels. In his re-marks to the panel, David Lerman suggested permitting ap-proaches in the criminal law that leave room for forgiveness, suchas restorative justice. He went on to define restorative justice as"viewing crime in its aftermath," which is essentially forward-look-ing, as opposed to seeking punishment for past wrongs. Lermanstated that restorative justice "asks a different set of questions[than traditional criminal justice]: first and foremost, what is theharm that has been caused; secondly, how do we fix that harm; andthird, who is responsible for that repair?" Similarly, problem-solv-ing courts are focused on the causes and consequences of criminalbehavior, not just the moment of criminal behavior itself.4. See, e.g., U.S. DEP'T OF JUSTICE, SOURCEBOOK OF CRIMINAL JUSTICE STATIS-Tics (1998) (setting forth statistics on public frustration with courts); see also JohnGreacen, What Standards Should We Use To Judge Our Courts?, 72 JUDICATURE 23(1988).2000] 1615FORDHAM URBAN LAW JOURNAL [Vol. XXVIIIII. FORGIVENESS IN THE "PROBLEM-SOLVING" MODELForgiveness fits into the problem-solving approach in two impor-tant ways. First, problem-solving courts emphasize treatment andservices in solving the non-legal problems that underlie the legaldifficulties that bring people into court, such as addiction, mentalillness or homelessness. The second way that problem-solvingcourts draw on the concept of forgiveness is by creating new vehi-cles for community residents to participate in the criminal justicesystem and its processes.A. Solving Non-Legal ProblemsThe example that best demonstrates the way in which problem-solving courts address a defendant's non-legal problems is found inthe drug courts, created to sentence addicted defendants to long-term, judicially-supervised drug treatment instead of incarceration.The first "drug court" began in Dade County, Florida in 1989. Theresults of the Dade County experiment have been provocative. Astudy by the National Institute of Justice revealed that DadeCounty drug court defendants had fewer re-arrests than compara-ble non-drug court defendants.5 Subsequent studies have shownthat retention rates for court-ordered treatment are much greaterthan the retention rates for treatment clients in general.6 FollowingDade County's example, a number of drug courts and other spe-cialized courts have arisen that aim to combine counseling, treat-ment and social services as alternatives to incarceration withdefendant accountability and compliance monitoring.7In drug courts, compliance with a treatment regime is closelymonitored by the drug court judge, who responds to progress or5. See U.S. DEP'T OF JUSTICE, NATIONAL INSTITUTE OF JUSTICE, ASSESSING THEIMPACT OF DADE COUNTY'S FELONY DRUG COURT, Executive Summary (1993).6. For an overview of the research on drug courts, see Steven Belenko, Researchon Drug Courts: A Critical Review, NATIONAL DRUG COURT INSTITUTE REVIEW(Summer 1998).7. Currently, 444 drug court programs are operating in 46 states. In addition, 277new drug courts are in the planning stages. See Office of Justice Programs DrugCourt Clearinghouse and Technical Assistance Project at American University, Sum-mary of Drug Court Activity by State & County, <http://gurukul.ucc.american.edu/jus-tice/DRCTCHARl.htm> (last modified January 10, 2000); Telephone Interview withCaroline Cooper, Office of Justice Programs Drug Court Clearinghouse and TechnicalAssistance Project at American University (February 2, 2000). For a general descrip-tion of drug courts, see OFFICE OF JUSTICE PROGRAMS DRUG COURT CLEARING-HOUSE AND TECHNICAL ASSISTANCE PROJECT AT AMERICAN UNIVERSITY, LOOKINGAT A DECADE OF DRUG COURTS 3 (1999). The Department of Justice has fundedmany of these drug court programs.1616FORGIVENESS IN CRIMINAL LAWfailure with a system of graduated rewards and sanctions. The typeof forgiveness that drug courts offer is not unconditional. Forgive-ness is offered in return for the accused accepting responsibility forhis or her criminal behavior and taking concrete and successfulsteps to address underlying problems that may have caused thatbehavior. Thus, problem-solving courts couple the "stick" of pun-ishment with the "carrot" of assistance and forgiveness.B. Community InvolvementThe creation of ways for community residents to participate inthe criminal justice system and its processes implicitly honors andacknowledges the harm done to neighborhoods and their residentsby substance abuse and chronic low-level offending. The best ex-ample of this approach to forgiveness may be found in communitycourts. In 1993, the first community court in the United States waslaunched in New York City - the Midtown Community Court.8The Midtown Court targets misdemeanor quality-of-life crimescommitted in and around Times Square.9 Offenders are sentencedto perform community restitution by performing such acts assweeping the streets, painting over graffiti, or cleaning local parksin an effort to pay back the community they had harmed throughtheir criminal behavior.10 The Court also links offenders to on-sitesocial services, including health care, drug treatment and job train-ing. Further, the Court has tested a variety of new mechanisms forengaging the local community in the criminal justice process, in-cluding advisory boards, community mediation, victim-offender im-pact panels and townhall meetings.The design of the Midtown Community Court reflects the beliefthat there is no such thing as "victimless" crime. The Courtacknoweldges that communities can be victimized just as individu-als can. The planners of the court consulted community residentsand businesses. These consultations revealed that members of thecommunity were upset by the criminal behavior in their neighbor-hood. They wanted restoration. The community also saw, how-ever, that those engaged in criminal behavior needed help tochange their ways. In effect, the community advocated for a court8. Many of the current officers of the Center helped New York State UnifiedCourt and the Midtown Community Court.9. Shoplifting, prostitution and subway fare evasions and graffiti were the maincategories of quality of life crimes.10. See John Feinblatt et al., Neighborhood Justice at the Midtown CommunityCourt, in CRIME AND PLACE: PLENARY PAPERS OF THE 1997 CONFERENCE ON CRIMI-NAL JUSTICE RESEARCH AND EVALUATION, National Institute of Justice (1998).20001 1617FORDHAM URBAN LAW JOURNAL [Vol. XXVIIstructured, in part, around forgiveness - a court that combinedpunishment and help together.An evaluation by the National Center for State Courts foundthat Midtown had helped speed case processing, improve compli-ance with alternative sanctions and reduce local crime. 1 In itswake have come nine replications; an additional two dozen com-munity courts are in the works.'IV. IMPACT OF FORGIVENESS IN PROBLEM-SOLVING COURTSEssentially, notions of forgiveness in courts arise from a desire toreach more durable and constructive results in criminal justice.Generally, forgiveness in the courts is found in the increasing em-phasis on using the crisis of arrest as an opportunity to re-connectthe accused to society and vice versa. Many judges have beensearching to insert forgiveness into the criminal justice system in aneffort to engage the accused and the community in a healing pro-cess that may be more effective in stemming future crime thanmerely putting someone behind bars. Thus, re-connecting the ac-cused with the community may reduce the risk of recidivism. Fur-thermore, forgiveness is a central element present when a judgeannounces a sentence that restores the victims to their pre-crimestate, mandates community service or engages the accused in a dis-cussion of the impact of his or her crimes on society and thevictims.Court-based programs and procedures that emphasize forgive-ness have two primary positive impacts. First, victims are grantedsome type of power to forgive the accused, giving them a pivotalrole to play in shaping criminal justice. This new role can be seenin the growth of victim-offender reconciliation panels. By exten-sion, when society is seen as a victim of every crime through theproxy of the government, then society also has the collective powerto forgive. The second impact is that the accused is viewed as hav-ing the potential to be forgiven by the victim and society. Thus,forgiveness elevates the accused in the eyes of society, deeminghim or her worthy of forgiveness. This powerful shift in perspec-tive allows for government to investigate the accused as a wholeperson with a past history and a potential future, rather than nar-H1. See MICHELE SVIRIDOFF ET AL., DISPENSING JUSTICE LOCALLY: THE IMPLE-MENTATION AND EFFECTS OF THE MIDTOWN COMMUNITY COURT (1997).12. See Community Courts (visited Apr. 6, 2000) <http://www.communitycourts.org>.1618FORGIVENESS IN CRIMINAL LAWrowly conceiving of the accused as a criminal who only exists in themoment of criminal behavior.Viewing the accused as someone who can be "treated" is morethan just semantic. While the provision of treatment may be seenas a form of punishment because a person is detained in a treat-ment facility and faces sanctions for leaving, treatment is also anact of sympathy, a gesture of forgiveness. Treatment sends a pow-erful message to the accused that says: "We forgive you for com-mitting your crimes because we understand that you committedthose crimes under the influence of circumstances beyond yourcontrol. If you agree to complete treatment, we will forgive youfor your crimes in whole or in part. If you refuse treatment or failto complete it, we will punish you for your crimes." Providingtreatment acknowledges that the accused is capable of change. So-ciety's positive investment in forgiving the crimes of addicted de-fendants arises from the defendant's success in completingtreatment.CONCLUSIONFor courts and, by extension, for the whole criminal justice sys-tem, forgiveness may not be an end unto itself. Forgiveness is in-strumental for courts attempting to have more effective and lastingresults by addressing the non-legal causes and consequences ofcrime, rather than merely sentencing based on the crime itself.Bringing elements of forgiveness into the practices and proceduresof criminal courts has produced some interesting and provocativeresults. For instance, the rise of the problem-solving courts, whichuse forgiveness as one of a number of new tools to address criminalbehavior more effectively, suggests that the place of forgiveness incriminal law has been established and is ripe for further academicstudy and practical experimentation.2000] 1619I As

English

Forgiveness as a Problem-Solving Tool in the Courts: A Brief Response to the Panel on Forgiveness in Criminal Law

bepress Legal Repository

Fordham Urban Law JournalVolume 27 | Number 5 Article 382000Forgiveness as a Problem-Solving Tool in theCourts: A Brief Response to the Panel onForgiveness in Criminal LawDerek A. DencklaFollow this and additional works at: https://ir.lawnet.fordham.edu/uljPart of the Criminal Law CommonsThis Article is brought to you for free and open access by FLASH: The Fordham Law Archive of Scholarship and History. It has been accepted forinclusion in Fordham Urban Law Journal by an authorized editor of FLASH: The Fordham Law Archive of Scholarship and History. For moreinformation, please contact tmelnick@law.fordham.edu.Recommended CitationDerek A. Denckla, Forgiveness as a Problem-Solving Tool in the Courts: A Brief Response to the Panel on Forgiveness in Criminal Law, 27Fordham Urb. L.J. 1613 (2000).Available at: https://ir.lawnet.fordham.edu/ulj/vol27/iss5/38FORGIVENESS AS A PROBLEM-SOLVINGTOOL IN THE COURTS:A BRIEF RESPONSE TO THE PANEL ONFORGIVENESS IN CRIMINAL LAWDerek A. Denckla*I have been invited to draft this response in order to provide anadditional perspective - centered on courts' role in providing for-giveness in criminal law. Let me begin by responding to the ques-tion posed to the panel: Can the criminal law make room forforgiveness? Like everyone on the panel that addressed this ques-tion, I, too, believe that the answer is a firm "yes." The simplicityof that question allows for an affirmative answer. What remains tobe explained, however, is how to answer some more pointed ques-tions on this issue: Is there room for forgiveness in the criminalcourts? If so, how does forgiveness manifest itself there? This re-sponse seeks to answer these questions generally by exploring theopportunities for forgiveness provided by "problem solving"courts.'Over the past decade, courts, administrators and judges, out offrustration with the pitfalls of "business as usual," have consideredand tested practices aimed at providing greater effectiveness andefficiency in the criminal justice system. One such solution hasbeen to develop court programs and courts address the significantnon-legal problems that arise along with the legal issues in a givencase.2 These "problem-solving" courts include drug courts, corn-* Fordham University School of Law, J.D. (1997), Columbia University, B.A.(1991). Mr. Denckla recently joined the Center for Court Innovation (the "Center"),the independent research and development arm of the New York State Unified CourtSystem, as a Senior Planner. This response draws upon the work the Center has un-dertaken to deepen public understanding of problem-solving courts. Formerly, he hasbeen a Skadden Fellow at the The Legal Aid Society and a Judicial Clerk for theHonorable Fred I. Parker, who sits on the U.S. Court of Appeals for the SecondCircuit.1. This response is not intented to provide an extensive or exhaustive essay intothe topic of forgiveness. Rather, this response is a commentary on the panel on for-giveness in the criminal law from a court-building perspectice that I have gainedthrough my work and research at the Center. Additional work should be undertakento investigate the gaps opened and questions raised herein. See Symposium, The Roleof Forgiveness in the Law, 27 FORDHAM URB. L.J. 1347 (2000).2. See Chief Judge Judith S. Kaye, Making the Case for Hands-On Courts, NEws-WEEK, Oct. 11, 1999, at 13.1613FORDHAM URBAN LAW JOURNAL [Vol. XXVIImunity courts, family treatment courts, mental health courts andgun courts. All of these courts can use the power and authority ofthe judiciary to change the behavior of litigants and even, in somecases, the behavior of governmental systems. In their various at-tempts to change the behavior of litigants, many problem-solvingcourts have hit upon the strategic use of forgiveness.I. THE COURTS AS A SOURCE OF FORGIVENESSAt first blush, it may seem that, of the various institutions thatcomprise the criminal justice system, the courts would be an un-likely source of forgiveness. The court's traditional role - throughthe person and the office of the judge - is to apply the law in a fairand impartial manner to the accused at trial and during sentencingand, in the absence of a jury, make factual findings that will deter-mine culpability. Based on this description, the court's ability toimpart forgiveness seems limited to showing mercy to a defendentby exercising discretion and, perhaps, reducing a sentence.For various political and social reasons, however, courts are be-ing forced to deal with a whole range of social, psychological andmedical issues that they have never had to face before and withwhich they have little or no expertise. For instance, a traditionalcourt is poorly equipped to help a substance-addicted person ob-tain treatment.3 Yet the research into drug courts suggests thatcourts have something unique to bring to the table when it comesto successful treatment and accessing other services: coercion.Without the coercive power of a court and its threat of potentialpunishment, social services agencies are usually unable to effec-tively treat substance-addicted or certain chronically mentally illpersons. Thus, when someone is accused of committing a crime,the courts often become the place where the accused's substanceaddiction is first identified as a serious problem, ripe for treatment.H. THE CREATION OF "PROBLEM-SOLVING" COURTSSweeping changes in the social structure of society have had adeep impact on the functioning of the criminal courts, causingjudges to re-think their roles and consider the place of problem-solving in the criminal justice system. At the same time, the public(such as the victim's movement) has been calling for the courts to3. Traditionally, criminal courts are meant to address the legal issues of a case.Courts are not designed nor are judges trained in treating the medial, social or psy-chological problems of defendants.1614FORGIVENESS IN CRIMINAL LAWsolve persistent social problems.' Like the prosecutors and defenseattorneys on the panel, judges and court administrators have grownfrustrated with "milling cases," "repeat players" -- defendants whoreturn to court again-and-again on the same charges - risingcaseloads and new and different types of cases that elude tradi-tional judicial responses.Problem-solving courts have not been associated with any partic-ular philosophy of the law. or jurisprudence. They tend to usewhatever works, borrowing from many new approaches to the lawthat have surfaced over the years. This search for new and moreeffective approaches to court procedures and practices is motivatedby the desire to make the court system more results-driven andoutcome-oriented. In general, however, problem-solving courtsshare the following five characteristics: (1) an expanded scope ofnon-legal issues are presented to the court; (2) the use of judicialauthority to solve both legal and non-legal problems that arisefrom an individual's case; (3) the consideration of outcomes that gobeyond merely applying the law, such as increased sobriety for ad-dicts; (4) increased collaboration between government and non-government partners to help achieve shared goals; and (5) themodification of traditional rules by casting judges and attorneys innew roles.Planners of problem-solving courts - particularly communitycourts - appear to have an approach that meshes with planners ofrestorative justice programs on many significant levels. In his re-marks to the panel, David Lerman suggested permitting ap-proaches in the criminal law that leave room for forgiveness, suchas restorative justice. He went on to define restorative justice as"viewing crime in its aftermath," which is essentially forward-look-ing, as opposed to seeking punishment for past wrongs. Lermanstated that restorative justice "asks a different set of questions[than traditional criminal justice]: first and foremost, what is theharm that has been caused; secondly, how do we fix that harm; andthird, who is responsible for that repair?" Similarly, problem-solv-ing courts are focused on the causes and consequences of criminalbehavior, not just the moment of criminal behavior itself.4. See, e.g., U.S. DEP'T OF JUSTICE, SOURCEBOOK OF CRIMINAL JUSTICE STATIS-Tics (1998) (setting forth statistics on public frustration with courts); see also JohnGreacen, What Standards Should We Use To Judge Our Courts?, 72 JUDICATURE 23(1988).2000] 1615FORDHAM URBAN LAW JOURNAL [Vol. XXVIIIII. FORGIVENESS IN THE "PROBLEM-SOLVING" MODELForgiveness fits into the problem-solving approach in two impor-tant ways. First, problem-solving courts emphasize treatment andservices in solving the non-legal problems that underlie the legaldifficulties that bring people into court, such as addiction, mentalillness or homelessness. The second way that problem-solvingcourts draw on the concept of forgiveness is by creating new vehi-cles for community residents to participate in the criminal justicesystem and its processes.A. Solving Non-Legal ProblemsThe example that best demonstrates the way in which problem-solving courts address a defendant's non-legal problems is found inthe drug courts, created to sentence addicted defendants to long-term, judicially-supervised drug treatment instead of incarceration.The first "drug court" began in Dade County, Florida in 1989. Theresults of the Dade County experiment have been provocative. Astudy by the National Institute of Justice revealed that DadeCounty drug court defendants had fewer re-arrests than compara-ble non-drug court defendants.5 Subsequent studies have shownthat retention rates for court-ordered treatment are much greaterthan the retention rates for treatment clients in general.6 FollowingDade County's example, a number of drug courts and other spe-cialized courts have arisen that aim to combine counseling, treat-ment and social services as alternatives to incarceration withdefendant accountability and compliance monitoring.7In drug courts, compliance with a treatment regime is closelymonitored by the drug court judge, who responds to progress or5. See U.S. DEP'T OF JUSTICE, NATIONAL INSTITUTE OF JUSTICE, ASSESSING THEIMPACT OF DADE COUNTY'S FELONY DRUG COURT, Executive Summary (1993).6. For an overview of the research on drug courts, see Steven Belenko, Researchon Drug Courts: A Critical Review, NATIONAL DRUG COURT INSTITUTE REVIEW(Summer 1998).7. Currently, 444 drug court programs are operating in 46 states. In addition, 277new drug courts are in the planning stages. See Office of Justice Programs DrugCourt Clearinghouse and Technical Assistance Project at American University, Sum-mary of Drug Court Activity by State & County, <http://gurukul.ucc.american.edu/jus-tice/DRCTCHARl.htm> (last modified January 10, 2000); Telephone Interview withCaroline Cooper, Office of Justice Programs Drug Court Clearinghouse and TechnicalAssistance Project at American University (February 2, 2000). For a general descrip-tion of drug courts, see OFFICE OF JUSTICE PROGRAMS DRUG COURT CLEARING-HOUSE AND TECHNICAL ASSISTANCE PROJECT AT AMERICAN UNIVERSITY, LOOKINGAT A DECADE OF DRUG COURTS 3 (1999). The Department of Justice has fundedmany of these drug court programs.1616FORGIVENESS IN CRIMINAL LAWfailure with a system of graduated rewards and sanctions. The typeof forgiveness that drug courts offer is not unconditional. Forgive-ness is offered in return for the accused accepting responsibility forhis or her criminal behavior and taking concrete and successfulsteps to address underlying problems that may have caused thatbehavior. Thus, problem-solving courts couple the "stick" of pun-ishment with the "carrot" of assistance and forgiveness.B. Community InvolvementThe creation of ways for community residents to participate inthe criminal justice system and its processes implicitly honors andacknowledges the harm done to neighborhoods and their residentsby substance abuse and chronic low-level offending. The best ex-ample of this approach to forgiveness may be found in communitycourts. In 1993, the first community court in the United States waslaunched in New York City - the Midtown Community Court.8The Midtown Court targets misdemeanor quality-of-life crimescommitted in and around Times Square.9 Offenders are sentencedto perform community restitution by performing such acts assweeping the streets, painting over graffiti, or cleaning local parksin an effort to pay back the community they had harmed throughtheir criminal behavior.10 The Court also links offenders to on-sitesocial services, including health care, drug treatment and job train-ing. Further, the Court has tested a variety of new mechanisms forengaging the local community in the criminal justice process, in-cluding advisory boards, community mediation, victim-offender im-pact panels and townhall meetings.The design of the Midtown Community Court reflects the beliefthat there is no such thing as "victimless" crime. The Courtacknoweldges that communities can be victimized just as individu-als can. The planners of the court consulted community residentsand businesses. These consultations revealed that members of thecommunity were upset by the criminal behavior in their neighbor-hood. They wanted restoration. The community also saw, how-ever, that those engaged in criminal behavior needed help tochange their ways. In effect, the community advocated for a court8. Many of the current officers of the Center helped New York State UnifiedCourt and the Midtown Community Court.9. Shoplifting, prostitution and subway fare evasions and graffiti were the maincategories of quality of life crimes.10. See John Feinblatt et al., Neighborhood Justice at the Midtown CommunityCourt, in CRIME AND PLACE: PLENARY PAPERS OF THE 1997 CONFERENCE ON CRIMI-NAL JUSTICE RESEARCH AND EVALUATION, National Institute of Justice (1998).20001 1617FORDHAM URBAN LAW JOURNAL [Vol. XXVIIstructured, in part, around forgiveness - a court that combinedpunishment and help together.An evaluation by the National Center for State Courts foundthat Midtown had helped speed case processing, improve compli-ance with alternative sanctions and reduce local crime. 1 In itswake have come nine replications; an additional two dozen com-munity courts are in the works.'IV. IMPACT OF FORGIVENESS IN PROBLEM-SOLVING COURTSEssentially, notions of forgiveness in courts arise from a desire toreach more durable and constructive results in criminal justice.Generally, forgiveness in the courts is found in the increasing em-phasis on using the crisis of arrest as an opportunity to re-connectthe accused to society and vice versa. Many judges have beensearching to insert forgiveness into the criminal justice system in aneffort to engage the accused and the community in a healing pro-cess that may be more effective in stemming future crime thanmerely putting someone behind bars. Thus, re-connecting the ac-cused with the community may reduce the risk of recidivism. Fur-thermore, forgiveness is a central element present when a judgeannounces a sentence that restores the victims to their pre-crimestate, mandates community service or engages the accused in a dis-cussion of the impact of his or her crimes on society and thevictims.Court-based programs and procedures that emphasize forgive-ness have two primary positive impacts. First, victims are grantedsome type of power to forgive the accused, giving them a pivotalrole to play in shaping criminal justice. This new role can be seenin the growth of victim-offender reconciliation panels. By exten-sion, when society is seen as a victim of every crime through theproxy of the government, then society also has the collective powerto forgive. The second impact is that the accused is viewed as hav-ing the potential to be forgiven by the victim and society. Thus,forgiveness elevates the accused in the eyes of society, deeminghim or her worthy of forgiveness. This powerful shift in perspec-tive allows for government to investigate the accused as a wholeperson with a past history and a potential future, rather than nar-H1. See MICHELE SVIRIDOFF ET AL., DISPENSING JUSTICE LOCALLY: THE IMPLE-MENTATION AND EFFECTS OF THE MIDTOWN COMMUNITY COURT (1997).12. See Community Courts (visited Apr. 6, 2000) <http://www.communitycourts.org>.1618FORGIVENESS IN CRIMINAL LAWrowly conceiving of the accused as a criminal who only exists in themoment of criminal behavior.Viewing the accused as someone who can be "treated" is morethan just semantic. While the provision of treatment may be seenas a form of punishment because a person is detained in a treat-ment facility and faces sanctions for leaving, treatment is also anact of sympathy, a gesture of forgiveness. Treatment sends a pow-erful message to the accused that says: "We forgive you for com-mitting your crimes because we understand that you committedthose crimes under the influence of circumstances beyond yourcontrol. If you agree to complete treatment, we will forgive youfor your crimes in whole or in part. If you refuse treatment or failto complete it, we will punish you for your crimes." Providingtreatment acknowledges that the accused is capable of change. So-ciety's positive investment in forgiving the crimes of addicted de-fendants arises from the defendant's success in completingtreatment.CONCLUSIONFor courts and, by extension, for the whole criminal justice sys-tem, forgiveness may not be an end unto itself. Forgiveness is in-strumental for courts attempting to have more effective and lastingresults by addressing the non-legal causes and consequences ofcrime, rather than merely sentencing based on the crime itself.Bringing elements of forgiveness into the practices and proceduresof criminal courts has produced some interesting and provocativeresults. For instance, the rise of the problem-solving courts, whichuse forgiveness as one of a number of new tools to address criminalbehavior more effectively, suggests that the place of forgiveness incriminal law has been established and is ripe for further academicstudy and practical experimentation.2000] 1619I As

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Forgiveness as a Problem-Solving Tool in the Courts: A Brief Response to the Panel on Forgiveness in Criminal Law

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Fordham University School of Law

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Fordham University School of Law

bepress Legal Repository