Decarceration Courts: Possibilities and Perils of a Shifting Criminal Law

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 incarceration 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 sentencing. 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 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 programs 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 institutional 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 proliferating specializations; and legitimation of harshness in conventional courts and unfairness toward less sympathetic, racial minority, or otherwise stigmatized defendants