Georgetown University Law Center Scholarship @ GEORGETOWN LAW 2012 Decarceration Courts: Possibilities and Perils of a Shifting Criminal Law Allegra M. McLeod Georgetown University Law Center, [email protected] This paper can be downloaded free of charge from: https://scholarship.law.georgetown.edu/facpub/1276 100 Geo. L.J. 1587-1674 (2012) This open-access article is brought to you by the Georgetown Law Library. Posted with permission of the author. Follow this and additional works at: https://scholarship.law.georgetown.edu/facpub Part of the Courts Commons, Criminal Law Commons, Judges Commons, and the Jurisprudence Commons Decarceration Courts: Possibilities and Perils of a Shifting Criminal Law ALLEGRA M. MCLEOD* A widely decried crisis confronts U.S. criminal law. Jails and prisons are overcrowded and violence plagued. Additional causes for alarm include the rate of increase of incarcerated populations, their historically and internationally unprecedented size, their racial disproportionality, and exorbitant associated costs. Although disagreement remains over the precise degree by which incarcera- tion ought to be reduced, there is a growing consensus that some measure of decarceration is desirable. With hopes of reducing reliance on conventional criminal supervision and incarceration, specialized criminal courts proliferated dramatically over the past two decades. There are approximately 3,000 specialized criminal courts in the United States, including drug courts, mental health courts, veterans courts, and reentry courts. The existing scholarly commentary on specialized criminal courts is largely trapped in the mode of advocacy, alternately celebratory or disparaging, and insufficiently attentive to the remarkable variation between different specialized criminal courts. In contrast, this Article takes a closer and more critical look at the marked expansion of these courts as a peculiar strategy to devise alternatives to conventional jail- and prison-based sentenc- ing. This Article reveals that specialized criminal courts have become significant terrain for a contest between competing criminal law reformist models and that different outcomes in this contest may portend starkly contrasting futures for U.S. criminal law and governance. More specifically, this Article introduces a typology and critical theoretical account of four criminal law reformist models at work in specialized criminal courts: a therapeutic jurisprudence model, a judicial monitoring model, an order maintenance model, and a decarceration model. Part II argues that, whereas the first three of these models threaten to * Associate Professor, Georgetown University Law Center. J.D., Yale Law School, 2006; Ph.D., Stanford University, 2009. © 2012, Allegra M. McLeod. For helpful discussion of the ideas explored in this Article, I am especially thankful to Bruce Ackerman, Easha Anand, Hadar Aviram, David Barron, Guyora Binder, Josh Cohen, David Cole, Dennis Curtis, Matthew Dimick, Sharon Dolovich, Malcolm Feeley, Dyan Ferraris, William Hubbard, Vicki Jackson, Pam Karlan, Doug Keller, Mark Kelman, Issa Kohler-Hausmann, Adam Kolber, Adriaan Lanni, Derin McLeod, John T. Monahan, Judith Resnik, Tanina Rostain, Louis Michael Seidman, Abbe Smith, Carol Steiker, Kate Stith, Jeannie Suk, David Super, Joshua C. Teitelbaum, Detlev Vagts, Robert Weisberg, Robin West, the editors of The George- town Law Journal, the research librarians at Georgetown Law Faculty Services, and workshop participants at Georgetown University Law Center, Yale Law School, and the 2011 Law and Society Meeting in San Francisco. I also received many thoughtful questions and useful feedback from participants in the faculty workshops at the following law schools: Berkeley, Brooklyn, Chicago, Cornell, Duke, Fordham, Harvard, Minnesota, Rutgers–Camden, Seattle, Stanford, UC Davis, Univer- sity of San Francisco, University of Toronto, University of Virginia, and the Washington College of Law at American University. Any errors are my own. 1587 1588THE GEORGETOWN LAW JOURNAL [Vol. 100:1587 aggravate existing pathologies in U.S. criminal law administration—expanding criminal supervision, diminishing procedural protections, and possibly even increasing incarceration despite opposite intended effects—the fourth, less predominant model, a decarceration model, holds the potential to bring about substantial transformative change in U.S. criminal law. On a decarceration model, specialized criminal courts function as experimental diversionary pro- grams that assign otherwise jail- or prison-bound defendants mental health and drug treatment, job and housing placement, along with other services in lieu of incarceration. On this model, integration within social contexts outside criminal justice systems substitute for the surveilling function of criminal supervision and incarceration. Part III provides a theoretical framework to capture the possibilities for criminal law reform opened by a decarceration model, which may cognitively reframe shared understandings of crime and punishment; engage in institu- tional reinvention, transforming criminal law administrative institutions into different configurations; and facilitate systemic change by spurring conceptual shifts and freeing resources from criminal law administration for other sectors. Part IV begins to explore the more general perils attending a specialized criminal courts law reform strategy, including excessive legalism; dilution of the retributive and deterrent features of criminal punishment; inefficient prolifer- ating specializations; and legitimation of harshness in conventional courts and unfairness toward less sympathetic, racial minority, or otherwise stigmatized defendants. TABLE OF CONTENTS INTRODUCTION .......................................... 1589 I. A SHIFTING CRIMINAL LAW ............................. 1599 A. REFIGURING HARSH JUSTICE: LEGISLATION, LAW ENFORCEMENT, LITIGATION ..................................... 1602 B. CRIMINAL COURT REFORM: SPECIALIZED CRIMINAL COURTS ..... 1605 II. FOUR REFORMIST MODELS AT WORK IN SPECIALIZED CRIMINAL COURTS ........................................... 1611 A. THERAPEUTIC JURISPRUDENCE MODEL .................... 1612 B. JUDICIAL MONITORING MODEL ......................... 1620 C. ORDER MAINTENANCE MODEL ......................... 1625 D. DECARCERATION MODEL ............................ 1631 III. POSSIBILITIES OF A DECARCERATION MODEL .................. 1644 2012] DECARCERATION COURTS 1589 A. COGNITIVE REFRAMING ............................. 1644 B. INSTITUTIONAL REINVENTION ......................... 1651 C. SYSTEMIC CHANGE ................................ 1654 IV. PERILS OF SPECIALIZED CRIMINAL LAW REFORM ............... 1657 A. EXCESSIVE LEGALISM? .............................. 1657 B. CRIMINAL JUSTICE? ................................ 1660 C. REDUCED PROCEDURAL PROTECTIONS? ................... 1665 D. SPECIALIZATION FOR GOOD OR FOR ILL? .................. 1669 E. LEGITIMATION COSTS? .............................. 1670 CONCLUSION ............................................ 1673 INTRODUCTION Significant change is afoot in U.S. criminal law. There remain roughly seven million people incarcerated, on probation, or on parole in the United States1—a quantum of criminal law oversight roundly condemned by commentators across the political spectrum and around the world.2 But by the turn of the twenty-first 1. See, e.g.,LAUREN E. GLAZE,BUREAU OF JUSTICE STATISTICS,CORRECTIONAL POPULATION IN THE UNITED STATES, 2010, at 1 (2011); PEW CENTER ON THE STATES,ONE IN 31: THE LONG REACH OF AMERICAN CORRECTIONS 1 (2009); see also Carol S. Steiker, Mass Incarceration: Causes, Consequences, and Exit Strategies,9OHIO ST.J.CRIM. L. 1, 1 (2011) (“The American rate of incarceration has increased more than fivefold since 1972 . [and] [t]he current rate is more than 700 per 100,000 . The United States[’] . rate of incarceration [is] . higher than even the most violent societies and most oppressive regimes on the planet[.] . The change in American incarceration rates is a shift relative to a previously stable baseline that can only be described as revolutionary . .” (footnotes omitted)). 2. See, e.g., Charlie Savage, Trend To Lighten Harsh Sentences Catches On in Conservative States, N.Y. TIMES, Aug. 12, 2011, http://www.nytimes.com/2011/08/13/us/13penal.html (noting increasing support in traditionally conservative states for reduced incarceration, including on the part of prominent conservatives such as Edwin R. Meese III, Grover Norquist, and Asa Hutchinson); see also Mass Incarceration in the United States: At What Cost?: Hearing Before the J. Econ. Comm., 110th Cong. 1–2 (2007) (opening statement of Sen. Jim Webb) (“[T]he United States now imprisons a higher percentage of its citizens than any other country in the world. The growth in the prison population is only nominally related to crime rates....The racial composition of America’s prisons is alarm- ing. [W]e are spending enormous amounts of money to maintain [the prison] system.”); Erik Luna & Paul G. Cassell, Mandatory Minimalism,32CARDOZO L. REV. 1, 3 (2010) (noting conservative support for eliminating mandatory minimums); William J. Stuntz, The Pathological Politics of Crimi- nal Law, 100 MICH.L.REV. 505, 509 (2001) (“As criminal law expands, both lawmaking and adjudication pass into the hands of police and prosecutors . The end point of this progression is clear: criminal codes that cover everything and decide nothing, that serve only to delegate power to district