Hastings Law Journal


Ben Kempinent


Problem-solving courts have emerged as one of the fastest growing innovations in the criminal justice system. Their growth has not been without controversy, given their dramatic departure from a traditional adversary model in favor of a collaborative approach in dealing with offenders with serious alcohol or substance abuse, or mental health issues. The most outspoken criticism of this approach has come from the defense bar. This Essay suggests much of the criticism is misplaced, and, that if care is exercised in separating the roles that defense counsel plays in communities with problem-solving courts the promise of this approach for appropriate offenders can be realized without compromising the core duties that counsel owes her client. The template proposed here for reconciling these conflicting interests is based in large part on the work and experiences of shareholders in Wisconsin problem-solving courts. It is further suggested that the proposed ABA Criminal Justice Standards for the Defense Function fail to address most, if not all, of the unique defense function issues presented by the problem-solving court model.

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