In the spring of 2018, a major controversy erupted in the USA when it became public that over 700 children had been removed from their immigrant parents at the US border (Dickerson 2018). The children were placed in immigrant detention shelters until the government decided whether to return them to their parents. These shelters faced scrutiny amid allegations of abuse and mismanagement (Dooley 2018). In contrast, juvenile courts in Italy are required to provide services to protect foreign minors (loc.gov 2018). A 2017 law requires the special courts to treat immigrant minors the same as resident minors. Unaccompanied minors are placed in foster homes, not detention centers. Immigrant children are provided with a range of needed services such as tutors to teach them to speak Italian. The dissimilar approaches of the USA and Italy highlight how countries’ reactions to social issues can differ dramatically. The reasons for these differences are the general focus of this article. Specifically, it focuses on the reasons some—but not other—countries adopt special problem solving courts to help offenders address the social issues that contribute to their wrongdoing.

Traditional courts use a one-size-fits-all approach to legal cases. As such, they are often unable to address the social and psychological issues that might contribute to the offender’s wrongdoing. Traditional courts focus on punishment, incapacitation, and deterrence and—as a result—often experience a high recidivism rate (see Wiener and Georges 2013). In contrast, problem solving courtsFootnote 1 address criminogenic risks and wrongdoing in a novel way. They generally focus on rehabilitation (sometimes in addition to punishment or other goals) and reduce recidivism by addressing the issues that contribute to wrongdoing. Many judges are trained as case managers for offenders, who have to take an active role in their own rehabilitation (Wiener and Georges 2013). The hope is that, by addressing underlying issues such as mental health, substance abuse, and lack of skills, offenders will not recidivate.

Problem solving courts address domestic violence, mental health, homelessness, prostitution, gambling, and other social issues that are related to crime for some wrongdoers (see e.g., Nolan 2009; Wiener and Brank 2013). Some courts are designed to help offenders with multiple issues, for instance, co-occurring mental health and substance abuse. Other courts help specific groups of offenders such as veterans, juveniles, or parolees.

Depending on the definition of problem solving courts, arguably the first such courts were the juvenile courts formed in Illinois in 1899 (Gatowski et al. 2013). Shortly after, community courts arose to address issues such as prostitution (for review, see Block et al. 2019). These early attempts met with varying degrees of success and were not widespread. It was not until the early 1980s that the modern-day problem solving court movement would take hold (Goldkamp 1999). Early analyses indicated that drug courts successfully reduced recidivism, leading judges and court administrators to develop similar courts for other groups (e.g., juvenile drug courts, see, e.g., Butts and Roman 2004) and other social issues. Mental health courts gained popularity in the early 1990s (Redlich 2013). These courts diverted offenders with mental health problems out of the traditional legal system and into community-based mental health treatment facilities. Soon, there would be over a dozen types of specialized problem solving courts in thousands of criminal, civil, and family court systems all over the USA (see Block et al. 2019) and abroad (Nolan 2009).

Some countries do not offer any problem solving courts or make any attempt to address offenders’ needs or the issues that contribute to their lawbreaking. In contrast, other countries provide courts that give all offenders access to services to address their needs. As described in detail below, these courts are not special courts but are typical courts. While some countries have specialized courts that are similar in many respects to those of the US, others have vastly different types of courts not commonly found in the US. For instance, Australia, New Zealand, and Canada have courts that handle cases involving indigenous offenders (Pfeifer et al. 2018). And, according to an informant for this article, Ecuador law allows people to sue on behalf of nature—a symbol of the recognition of the social issue of environmental protection.

Whether countries have problem solving courts—and what these courts look like—varies greatly, prompting the current research. Although dozens of articles (e.g., Butts 2001; Davis and Cates 2017; DeMatteo et al. 2013; Gal and Dancig-Rosenburg 2017; Roman and Harrell 2001), chapters (e.g., Devault et al. 2018; Pfeifer et al. 2018), and books (e.g., Lucero 2012; Miller and Johnson 2009; Nolan 2009; Wiener and Brank 2013) have discussed various aspects of problem solving courts, few have provided in-depth examinations of why countries take such different approaches, as does the current article.

This article first provides an overview of the history and types of problem solving courts in the USA and multiple countries around the world. Next, the article describes a qualitative analysis which resulted in a typology of factors that help create hypotheses as to why a society has (or has not) adopted problem solving courts. The article goes beyond a summary of the existing literature by incorporating interviews with informants, observations, and document reviews. The resulting typology offers hypotheses concerning 11 factors that have discouraged or encouraged development of problem solving courts in over a dozen countries.

Overview

This research project began with the simple question: Why do some countries have problem solving courts but others do not? That proved to be a difficult question to answer, in part because it is difficult to define problem solving court. Some courts are partly problem solving courts but partly traditional courts. There is some discussion as to whether domestic violence courts or family courts are considered to be problem solving courts. Courts in some countries serve the same purposes as problem solving courts, but would not be considered problem solving courts—because every court in the country serves this function (see below for details).

This is also a difficult question to answer because courts differ over time and place, even within the US. One book has discussed problem solving courts in six countries (Nolan 2009) and other shorter publications have contributed various perspectives about courts abroad (Nolan 2010; Pfiefer et al. 2018; Richardson et al. 2013). While these sources provided a great foundation for the current inquiry, there were many questions left unanswered.

I conducted interviews with over a dozen informants who were graduate students or professors at the International Institute for the Sociology of Law in Oñati, Spain, attendees at the conference for the European Society of Criminology, judges associated with the judicial studies program at the University of Nevada, Reno, or a referral from one of these interviewees. Interviewees were a convenience sample of informants with degrees and/or work experience in the law in their home countries. Approximately 30 interview requests were made. People who were unsure about the responses to the interview questions were excluded from the analyses to protect the integrity of the interview information. All interviewees believed themselves to be knowledgeable enough to answer the questions accurately.

Interviewees were from Spain, France, Italy, Ecuador, USA, Canada, India, the Netherlands, Finland, Columbia, Argentina, Ghana, Scotland, and Germany. The countries were neither randomly selected from all countries in the world nor were the participants randomly selected from all legal professionals/scholars in any country. It would be difficult to acquire such lists, and thus, a convenience sample of willing informants was deemed sufficient to create hypotheses about factors that encourage or discourage the development of problem solving courts. This limitation could be addressed in future research designed to actually test the typology.

The semi-structured interviews were designed to learn (1) whether (and how) the interviewees’ countries used their court systems to address social issues and (2) their explanations for why their country has adopted that approach. These informants were experts (through education and/or experience) in sociology and/or law in their home countries. In addition to interview responses, many interviewees provided legal documents or other sources (e.g., web links, books). I also made observations of courts (e.g., solicitation court) and talked to judges and other court personnel. Finally, the International Institute for the Sociology of Law library provided critical sources not easily available elsewhere. This article contains the results of this multi-method inquiry. Citations to scholarly documents are provided; where there are no citations, this information came from one or more of the other sources (e.g., interviews, observations) and is the result of this qualitative data collection inquiry. Ultimately, this inquiry focused on the research question: What factors encouraged or discouraged the development of problem solving courts in various countries around the world? Hypotheses are developed to help answer this question qualitatively. The next section provides a foundation for understanding the typology that was developed to hypothesize the answers to this research question.

Transnational diffusion of legal innovations

Globalization has allowed for the transnational diffusion of many legal and governmental innovations, including problem solving courts. Globalization is the transmission of legal ideas and innovations from one country to the next; researchers often study the extent, intensity, velocity, and impact of this diffusion (e.g., Halliday and Osinsky 2006; Muncie 2005). For instance, problem solving courts were developed in Florida in the USA and then diffused throughout the USA and abroad. Legal innovations are diffused much like other technology, ideas, laws, and human constructions (Meyer et al. 2009; Sutton 1988).

Globalization makes it possible for leaders of a country to learn what other countries do and then decide whether they want or need to take the same or similar approach. More broadly, the modern changing society can be explained by what John Meyer called World Society Theory: a description of a modern society which relies on trends, causal mechanisms, and consequences of modernization, globalization, and diffusion (Meyer et al. 2009). The World Society Theory can explain the development and diffusion of many social entities, including education, environment, science, human rights, and law (Meyer et al. 2009).

Researchers have studied the transnational diffusion of governmental innovations, including juvenile courts (Sutton 1988). During transmission, country-specific characteristics affect both the timing of adoption of legal and governmental innovations—and whether the innovation is adopted at all. In one thorough study of the diffusion of legal ideas, Sutton (1988) begins with the idea that social problems are human inventions to which solutions are crafted. In Sutton’s example, problem children are the social issue and juvenile courts are the solution. Sutton’s book investigates how the juvenile court movement spread throughout the USA and reviews many models of diffusion (e.g., evolutionary systems theory, ideological diffusion model, institutional model) and the influences that they propose that are the driving forces (e.g., ideology, need, economics). Various models suggest how the movements progress (e.g., some models suggest that diffusion begins in urban areas and then spreads to rural areas, though not always in a linear fashion) and how solutions morph (e.g., begin as ambiguous and not well defined in law or practice, but then become more specific and clear) and how quickly and evenly the solution is adopted (e.g., some states are more receptive to an innovation than others). For more on the globalization of legal ideas related to juvenile justice, see Goldson and Muncie (2012) and Caldwell (2014).

More specific to this article, Nolan’s (2009) book discusses how problem solving courts have spread from one country to another. He discusses how countries borrow some legal ideas—but not others—from other countries. Countries also develop their own procedures based on the general ideas from other countries, morphing courts and their procedures to fit their own specific cultural and legal systems. The current article offers a qualitative assessment that creates a typology of hypotheses regarding the reasons countries have—and have not—adopted problem solving courts, based primarily on interviews with informants.

A thorough review of this broad body of research regarding the transnational diffusion of legal innovations is beyond the scope of this article. Even so, it suggests that legal innovations—including problem solving courts—have both similarities and differences among various jurisdictions and countries. These differences could be explored by these theories of diffusion in future research. For instance, a quantitative analysis such as Sutton’s (1988) is beyond the scope of this paper, but could compliment Nolan’s (2009) approach and the qualitative approach taken in this article.

Variations in courts

Within a decade after the establishment of the first drug court, problem solving courts were no longer restricted to the US, nor were they limited to addressing substance abuse (see generally, Nolan 2009, 2010). Problem solving courts are now a widely used judicial innovation in the US. The US Department of Justice estimated there were over 3,000 problem solving courts of various types in the USA in 2012 (Strong et al. 2016). By 2015, the National Institute of Justice (2017) reported there were over 3,100 drug courts (but did not report on other kinds of problem solving courts). The number of courts differs greatly, in part due to who is counting and how they count/define problem solving courts. It is even more difficult to determine how many courts exist internationally. There are many definitions of problem solving courts, and many countries have courts that serve these functions but would not be labeled as such. There is no international database or governing body for problem solving courts and thus, there is no firm data estimating the number of courts that exist internationally. No interviewee was able to provide such quantitative data. Despite the lack of quantitative figures, it is important to study courts qualitatively. This section addresses the different types of courts in various countries and some of the procedural differences among these courts.

Types of courts

A detailed explanation of every type of court is beyond the scope of this article, but a brief summary is provided here to lay the foundation for the qualitative analysis to come. Problem solving courts in the USA address a plethora of specific crimes (e.g., domestic violence, prostitution, sex trafficking, gambling, gun violations, driving under the influence, animal cruelty) and social issues (e.g., drug use, mental health, homelessness, unemployment) that might relate to crime for some wrongdoers. Some countries have formed courts for certain groups of wrongdoers such as juveniles who are in trouble at school or with the law, parolees who violate the terms of their release from prison, indigenous people, parents who have failed to pay child support, or veterans (for reviews, see Berman and Feinblatt 2001; Block et al. 2019; Huddleston and Marlowe 2011; Kaplan et al. 2018; Ronan et al. 2009; Wolf 2005; Winick 2013). Such groups of people are often overrepresented in the legal system, at least in part because of the social issues they experience.

Other problem solving courts are hybrid courts that address multiple social issues (Richardson et al. 2013; Winick et al. 2010). For example, unified courts offer a holistic approach to addressing the plethora of issues that might affect a family (e.g., divorce, violence, child safety, mental health, drug abuse; see Babb 2013).

Some problem solving courts are generally not found in the USA. For example, Canada, New Zealand, and Australia have indigenous courts to address the issues specific to this population in a culturally relevant manner (Nolan 2009; Richardson et al. 2013). Indigenous courts handle cases with one or a group of indigenous people through procedures that combine the law of the government and the traditions of the tribe. Tribe elders assist judges in the process, which often occurs in a tribal setting. Cultural traditions are upheld, the native language is spoken, and the tribal values are enforced (Richardson et al. 2013). Although the USA has separate jurisdictions and courts for Native Americans, they are not special problem solving courts designed to help with social issues.

As this brief review indicates, there is a great variety of types of problem solving courts. Even within a certain type of court, there is much variability in the procedures, as discussed next.

Procedural differences among courts

Courts have changed over time and from one jurisdiction and country to another. While there are best practices (e.g., Gatowski et al. 2013), there is no specific problem solving court format. As a result, courts differ in many ways. The first difference concerns the relationship and activities shared by the judge and the defendant. In the USA, the offender’s accomplishments are marked with cheering and hugging at the end of informal hearings; the successful completion of the program is celebrated with a graduation ceremony (Nolan 2009; Richardson et al. 2013). Courts in other countries such as England, Scotland, and Australia are more formal; there is little emotion or celebration. This highlights the increased personal connections between the judge and the defendant (e.g., celebrating together) in the USA.

Second, courts differ in how they handle violations of the treatment plan (e.g., court-ordered therapy). Some courts are quick to imprison defendants for infractions such as failed drug tests. Others realize that relapse is part of the treatment process and instead evoke less punitive means to sanction the violation (e.g., community service; Goldkamp 1999). Some offer incentives such as gift cards for compliance with court orders (Redlich 2013).

Third, courts differ in their focus. For instance, many domestic violence courts in the USA focus on rehabilitating offenders, but courts in other countries (e.g., Canada, England) focus instead on protecting and rehabilitating the victim (Nolan 2009). An interviewee in Scotland indicated that the foundation of their domestic violence courts is a victim’s rights focus, inspired by a feminist rather than a therapeutic model. The court’s goal is to isolate the victim and punish the offender. In general, the victim—not the offender—receives treatment. Further, according to an interviewee for this research, in India, there are special procedures for domestic violence offenses to protect the woman and her rights to the home and finances, but there are no procedures in place to reform the abusive man.

Fourth, some courts focus only on repeat or serious offenders, while others focus only on those who have committed minor crimes (McIvor 2009; Nolan 2001; Redlich 2013; Richardson et al. 2013). In Scotland, drug courts focus on repeat offenders, unlike in the USA (McIvor 2009). Mental health courts also differ greatly, even within the USA, with some focusing on felony offenders and others focusing only on less serious offenders (Redlich 2013).

Finally, courts differ as to whether their judges receive special training, whether one judge hears the case from start to finish, and whether the program uses a special judge or a special court. For instance, most US drug courts are special courts that are separate from the traditional courts. According to our interviewee from France, any judge can refer a defendant to specially trained judges who act as social workers in the case. Thus, there is no special court, but instead, a special judge who handles cases with defendants experiencing social issues.

In sum, countries differ in not only the type of courts they offer but also in the procedures they follow. Recognition of this prompted the current research, which asks the question: Why do some societies have problem solving courts and others do not?

The formation (or not) of problem solving courts

There are a variety of reasons for the surge in the formation of specialized courts, and these reasons likely vary by country—and even among jurisdictions within a country. Adoption of a problem solving court is rarely just a legal change; it typically reflects a change in culture and the society’s values as well (Nolan 2001). Social norms vary from one culture to the next, and this is reflected in the society’s laws and practices (for review, see Nolan 2009, Chapter 2). As Glendon et al. (1982) note, “law is a concentrated expression of the history, culture, social values, and the general consciousness and perception of a given people (p. 10).” The typology described below delineates factors that can help develop hypotheses as to why some countries do adopt problem solving courts while others do not.

Hypotheses for why societies do adopt problem solving courts

Problem solving courts can arise for many reasons. First, problem solving courts might arise out of necessity (Berman and Feinblatt 2001) or very pragmatic reasons (Nolan 2009) rather than purely out of a desire to help. One such reason is related to prison overcrowding and judicial caseloads; the degree to which a country experiences these phenomena could relate to their adoption of problem solving courts. In the USA, in the 1980s, the “War on Drugs” increased punitive responses to drug crimes, leading to a dramatic increase in prosecutions (Terry 1999). Prisons were overcrowded and judicial dockets were overbooked (Goldkamp 1999; Terry 1999). Judges noted that the same defendants returned multiple times because they did not have the ability, means, or desire to quit using drugs. Judges reasoned that, if defendants could break their drug habit, they would be less likely to re-offend (Terry 1999). Indeed, early assessments showed that the courts had great promise; offenders who had experienced drug courts had fewer re-arrests than those who had experienced traditional courts (Terry 1999). As such, overcrowding and full judicial dockets resulting from the War on Drugs (and its punitive mandatory sentences) were one factor relevant to the USA. The interviewee from Scotland indicated that, while many American judges want problem solving courts to avoid the “draconian nature of available sentences,” this is not a pressing problem in Europe and not likely a factor there.

Other courts might be developed as a tactic to gain the public’s trust (Nolan 2009), yet another practical reason. Judges sometimes worry that the community sentiment toward the courts is waning and the courts are not perceived as legitimate authorities (Nolan 2009). If a community is concerned about a particular social issue, a problem solving court might be developed to address that issue in order to bolster the community’s confidence in the court system (Nolan 2009). This community sentiment concern is related to a broader concern about procedural justice—the sense that the processes used are fair. Perceptions of procedural justice are important because they affect a person’s willingness to follow the law (e.g., the judge’s orders) and perceptions that the courts are legitimate authorities (McIvor 2009, see generally Block et al. 2019).

Another practical reason is financial. Economics sometimes drive the establishment of courts—this is certainly the case for the drug courts in the USA. However, the interviewee from Spain indicated that economics is not a consideration—their courts’ response to social issues is driven by their constitution (as will be discussed below). In examples such as these, the choice to create problem solving courts reflects reasons that are quite practical. While the well-being of offenders is likely also a motivating factor, the main motivation is pragmatic.

Second, problem solving courts might arise from changes in legal and social structure. An increase in the availability of formal law school education and the establishment of more courts allows for the development of problem solving courts. In the USA, there are continuing education trainings and conferences designed to help judges in problem solving courts, but more training is needed, especially during law school (Brank and Haby 2013). Other countries have more or less education and training available in general, which can affect the ability and willingness of judges to support problem solving courts.

In addition to changes in legal training, changes in the law itself can affect the development of problem solving courts. In many countries, courts have become specialized as a response to the increasing complexity of the law. Because general jurisdiction judges lacked the special knowledge needed to handle all types of cases, special courts were developed to handle some case types (e.g., bankruptcy, maritime issues). Some specialty courts were problem solving courts with judges who have special training or experience in specific case types.

Social changes also encouraged the development of problem solving courts. For instance, the legal system began to handle many issues that were once considered to be private issues more likely to be addressed by churches (Berman 2000; Berman and Feinblatt 2001) or simply overlooked because they were considered family issues (e.g., domestic violence) or health issues (e.g., drug addiction) rather than legal issues (About drug law 2015). According to the interviewee from Ecuador, prostitution is seen as a health problem and is thus not addressed by the courts.

Recognition of some social issues led to the development of courts to handle family matters such as domestic violence, dependency (i.e., child abuse and neglect), or divorce in the USA. Similarly, an interviewee from Argentina indicated that family courts were separated from the traditional courts in order to provide even more specialized treatment.Footnote 2 When a child is in danger because of his family situation, the family civil court special procedures allow judges to call for a team of psychologists, social workers, and lawyers with special training. These examples illustrate that problem solving courts are sometimes developed in part as a response to society’s demands (see also Berman and Fienblatt 2001).

Third, advances in medical and social science and technology have allowed for the development of problem solving courts in some countries. In recent decades, social scientists have recognized relationships between crime, drug addiction, and mental illness (Claro et al. 2015). This has shaped how some people—and some countries as a whole—view the causes of crime. For some people, crime is a personal choice that deserves retribution. For other people, crime is, in part, due to one’s social situation (e.g., poverty, mental illness, addiction). These attributions differ from one person to the next and from one country to the next. For instance, as discussed later in this article, interviewees from some countries believe that prostitution is, in part, driven by social situations such as poverty; others believe that prostitution is a personal choice. Similarly, the foundation of drug courts in the USA was that addiction contributes to crime, yet in India (according to the interviewee), there is little recognition of this connection.

Similarly, the interviewee from Argentina indicated that it is the community’s general belief that no one would ever commit a crime unless they had some problems such as drug addiction or mental health problems; this attribution explains why the country generally favors institutions that help offenders, rather than favoring prisons. In contrast, the interviewee from Columbia noted that the general population is more focused on retribution and punishment (despite the legal code’s focus on rehabilitation) because it is believed that there is something fundamentally wrong with criminals and they deserve to be ostracized. Thus, Argentina (which makes situational attributions) offers rehabilitation, while Columbia (which makes personal attributions) does not.

The general community sentiment of a jurisdiction reflects these attributions and the way that wrongdoing is handled (e.g., punishment, rehabilitation; see generally Miller et al. 2015). These attributions shape policy responses to crime inasmuch as problem solving courts arise out of the recognition that social issues (e.g., homelessness) contribute to lawbreaking. Certain groups within the community differ systematically in the attributions they adopt. Political psychologists have found that republicans and conservatives tend to adopt more personal attributions, meaning that they focus on individual responsibility and culpability (Cochran et al. 2012). Thus, states and countries that are more conservative might be less willing to support problem solving courts. Even so, within the USA, both republicans and democrats support drug courts (Maron 2009) and thus, political beliefs might not be a reliable predictor of adoption of problem solving courts. According to the interviewee from France, even conservative people believe that courts should address social issues, they just want more punishment along with rehabilitation. In sum, the broad study of social science can shape policy responses to crime inasmuch as problem solving courts arise out of the recognition that social issues (e.g., homelessness) contribute to lawbreaking.

Advances in medicine have also played a role in the adoption of problem solving courts (Berman and Feinblatt 2001). In the USA, addiction is now recognized as a medical issue and many treatments have been developed (see Robinson and Adinoff 2016 for a historical review). The development of mental health treatment facilities, treatment options, and assessment tools has made problem solving courts a possibility (Berman 2000).

Just as medical and social science are useful—maybe even necessary—to the development of problem solving courts, so too are technological developments (Berman 2000; Berman and Feinblatt 2001). Technologies such as house arrest bracelets, drug testing, and communication systems (e.g., online database, email between judge and treatment facilities) are critical to monitoring offenders’ compliance and progress.

Veterans courts are an example of the technology and science related to problem solving courts. Social science has determined that, when veterans return to the USA, they often have difficulty adjusting to civilian life (Elbogen et al. 2012); prompting some jurisdictions to adopt veterans courts (Hawkins 2009–10). Veterans might suffer from problems related to mental illnesses (such as post-traumatic stress disorder), substance abuse, finances, family, and housing. Such social issues can lead veterans to become involved in the legal system. Veterans courts are hybrid courts that often work with the Veterans’ Association to provide the services that veterans need (Huddleston and Marlowe 2011). The veterans court in Buffalo, New York, pairs offenders with veteran mentors who are trained to assist with offenders’ rehabilitation. This system highlights a plethora of science and technology. A network of services requires modern communications (e.g., databases, Internet, email). Mental health and substance abuse professionals require the science and technology to diagnose and treat these illnesses. The mentoring program was likely influenced by social science research on outcomes of mentoring programs. House arrest monitoring bracelets help track the wrongdoer and reduce or eliminate the need for incarceration to prevent recidivism. All these advances in medicine, science, and technology combine to make veterans’ courts possible. The USA has largely embraced the advances in medicine, science, and technology that both encourage the development of problem solving courts. Yet, countries that have little access to technology or science would be less likely to have courts that depend on it.

Fourth, problem solving courts might arise due to a catalyst that suddenly brings attention to a social issue. Social issues do not simply exist; they have to be recognized as a problem (Blumer 1971; Kingdon 2003). In order for problem solving courts to be developed, the social issue they are designed to help alleviate has to first be recognized as a problem. For instance, according to an interviewee, gambling is illegal in Ecuador, but it is not seen as a problem, so the legal system does little to address gambling. In contrast, in the USA, gambling is recognized as an addiction and there are a number of gambling problem solving courts.

Even if a country recognizes some social issues as deserving of special courts, it may not address other social issues in the same manner. For instance, according to our interviewee from India, a human rights movement in the 1990s prompted an awareness of social issues related to domestic violence and disabilities. While the courts now somewhat regularly assist with these social issues, they do not regularly help with other issues (homelessness, drug addiction, prostitution, gambling). Likely, that society does not yet recognize them as social issues in need of the courts’ attention.

As these examples illustrate, the rise of problem solving courts is a social phenomenon. Problem solving courts can be the response to social events including (1) one highly visible event that causes a panic, such as a crime involving an offender with mental illness (Redlich 2013); (2) a specific social movement like the “War on Drugs” (Nolan 2001); or (3) a broader movement like the feminism movement that prompted domestic violence courts in the USA (Shaver 2013; Wolff 2013). No matter the catalyst, the issue must come to the attention of legal authorities, along with the perception that this is an issue that a specialty court can address.

Fifth, a social problem might become recognized as such even without a specific catalyst (such as the social movements just described). Lawmakers or court personnel might personally come to believe that something should be done, or they might react to community sentiment, especially in representative democracies (see generally Miller et al. 2015).

As discussed in the previous section, problem solving courts sometimes are developed quite quickly after a catalyst suddenly brings attention to the social issue. Often, however, problem solving courts develop after a long evolution of legal reforms and a shift in community sentiment (see generally, Blumer 1971). Legal actors might take small steps over many years that eventually lead to a major development like the adoption of a problem solving court. For instance, an interviewee mentioned that, in 2012, Argentina recognized battered wife syndrome as a defense that is available to a woman who harms her abusive husband. About the same time, the country also began to include marital rape in the legal definitions of rape. Although these events had likely been occurring for many years, leaders began to recognize these abuses as serious social issues in need of legal action. There is no special court, but these actions indicate that perhaps someday leaders might recognize the need for a problem solving court for domestic violence-related issues.

An interviewee from Ecuador indicated that there are no problem solving courts, but the public and government are quickly recognizing driving under the influence as an emerging problem that the legal system should address. While there is not yet a social movement that would demand addressing this issue through a special court (or the financial means to do so), their constitution would allow for such a court. Driving a vehicle while under the influence is seen as a serious crime in both Ecuador and in the USA, yet there is no help for defendants in Ecuador, while there are drug courts and even some DUI courts in the USA. Perhaps if the concern continues, Ecuador will eventually follow suit.

Another social issue that is recognized as problem in only some countries is prostitution. Solicitation courts are found mostly in the USA, as prostitution is legal in many other countries. One such court was in Reno, Nevada. One judge held solicitation court several days a month; during this time period, women who had been arrested for illegal prostitution appeared. The judge monitored their progress in gaining housing, employment, clothing, and other necessities. Such courts help prostitutes, the court system, and the community by reducing prostitution-related offenses (see e.g., Sanchez and Miller 2009). According to the interviewees from Columbia, Argentina, Ecuador, and Italy, prostitution is legal and thus is not generally seen as a social issue that would necessitate a problem solving court. In these countries, it is believed that the woman has chosen that occupation; she is not a person in need of the law’s help any more than someone in another occupation. According to the interviewee from Ecuador, prostitution is a health problem, not a legal problem. The laws and health codes regulate prostitution, but do not help prostitutes address problems or gain alternate employment. This is likely to remain the case until lawmakers recognize prostitution as a social issue in need of legal intervention.

All these factors are the bases for hypotheses regarding why problem solving courts arise. Some are practical, some are cultural, and some are due to larger social movements. These factors are merely half of the typology, however. The next section discusses the factors that hypothesize as to why some countries do not adopt problem solving courts.

Hypotheses for why countries do not adopt problem solving courts

There are a variety of factors that seem to discourage some countries from adopting specialized courts. The first factor is the basis of the hypothesis involving financial resources needed to develop and maintain problem solving courts. While such courts are thought to be ultimately cost-effective because they prevent recidivism, their initial costs can be quite high (Nolan 2001). Indeed, the recession caused cutbacks or elimination of some problem solving courts in the USA (see Petrila 2013 for review). Personnel shortages can also prevent the development of courts. In most jurisdictions in India, for example, the courts are overburdened with high caseloads, according to an interviewee. It would be difficult to convince the judges and the broader court system to take on the additional burden of developing a problem solving court, even if it meant an eventual decrease in caseloads.

In some jurisdictions, there would not be enough clients or resources (e.g., therapists, supervised housing) to warrant a problem solving court. For example, an interviewee from Finland indicated that because it is a small, sparsely populated country, it is tough to justify an entire court for only a few offenders. In some jurisdictions, there might be only 10–75 defendants in the problem solving court (see generally Petrila 2013), indicating little demand for problem solving courts. In such sparsely populated locations, a community might only have one caseworker, which would limit the number of offenders who could participate in the court (see generally Petrila 2013). Perhaps the ultimate necessary resources are judges who are willing to develop and carry out problem solving courts. The solicitation court in Reno (mentioned above) was dissolved after the judge left the bench and the new judge declined to continue the court.

Second, it is hypothesized that some societies do not have problem solving courts because of a belief that a problem solving court could have negative outcomes. For instance, a possible consequence of problem solving courts lies in the way that the public might perceive the social issues that are handled in the special courts. The interviewee from India indicated that the country’s Domestic Violence Act of 2005 established a special procedure for domestic violence complaints. The special procedure is not a special court, but it does mainstream the domestic violence issue and indicates that it is an issue that is being taken seriously. A special court might communicate that the issue is not serious or not deserving of regular court. Thus, to treat domestic violence differently from other crimes might actually be perceived negatively.

Other potential negative consequences are for offenders. Some legal professionals have concerns that problem solving courts threaten offenders’ due process rights because the courts do not use the adversarial process (Brank and Haby 2013). Instead, they require offenders to admit their guilt in order to receive help through the court. Often, offenders do not have lawyers and are not given a normal trial in which a prosecutor has to prove the offenders committed crimes. Often, offenders are promised that the charges against them will be dropped if they successfully complete treatment—which could be coercive (Brank and Haby 2013; Nolan 2009). The interviewee from Italy noted that most judges are accepting of the non-adversarial courts, but attorneys are not as accepting because specialty courts interfere with their duties to act as an advocate for their clients. Perhaps this hesitation relates to these consequences for offenders.

Problem solving courts also could have negative consequences for judges. Judges who hear the same types of cases every day could be at greater risk of burnout than judges that hear a variety of cases (Chase and Hora 2000). Hearing stories of abuse, illness, and violence puts judges at risk of vicarious trauma: the second-hand negative emotions and thoughts that a person in a helping occupation can experience as a result of working with people who have these experiences first-hand (Chamberlain and Miller 2009). The informant from France noted that judges do not want specialty courts that deal with only one case type (e.g., drug court), in part because they believe the diversity of hearing a variety of cases will prevent burnout.

Finally, judges might have negative experiences as a result of becoming close with the offenders in whom they have invested months or years of their time. Although watching an offender recover and become a more productive citizen is likely rewarding, watching an offender struggle or fail might be difficult for the judge who has tried to help. Because of the possible consequences of problem solving courts, many people have hesitations, which can discourage the development of such courts.

Third, various countries do not have problem solving courts to help some offenders; they have courts that help all offenders. In the USA, only select offenders are able to participate in a problem solving court. Participation is contingent on a judge recognizing that the offender needs help and the availability of a problem solving court and all its therapeutic components (e.g., drug treatment center, counselors). In contrast, allowing only some defendants access to problem solving courts would violate some countries’ right of equality ensured by their Constitution. According to interviewees in such countries (e.g., Germany, Italy, Spain, France, Netherlands), problem solving courts do not exist because all offenders receive the same considerations. For instance, according to an interviewee from Spain, all defendants receive individualized attention to determine what that offender needs (e.g., therapy). The notion of problem solving courts are special implies that some defendants will receive special treatment but others (in traditional court) will not; this inequality is not acceptable.

As with Spain, it would be unacceptable in France for some defendants to receive special services while others do not, according to interviewees. The belief is that, if a rehabilitative effort works, every offender should have access to it. France has one of the most comprehensive systems of rehabilitation; courts must address issues such as housing, training, education, mental health, and family issues for every offender. If a judge recognizes that an offender is experiencing a social issue, he will refer the defendant to a special judge, within the same court, called a JAP judge. While every court has a JAP judge, it is not technically a problem solving court such as used in the USA; it is a judge who facilitates the sentence and rehabilitation process. Judges usually refer defendants to probation services where they have a network of places to help the defendants get the help they need (e.g., employment, training, therapy, housing). Their system of JAP judges is mainstreamed throughout the country so that no offender gets something special. Thus, in some countries, there are no special problem solving courts because every defendant gets the same court—which serves the same purposes as problem solving courts in other countries. The principle of equity thus forbids specialty courts which would provide only some offenders with help.

Fourth, related to the last point, is the perceived function of the courts. Some countries do not have special problem solving courts that rehabilitate offenders because every court serves this rehabilitative function. Thus, problem solving courts are unneeded because of these countries’ belief that the courts’ role is to rehabilitate. In the USA, the courts’ role is to determine if someone has broken the law and to determine the appropriate sentence—not to help rehabilitate the offender (i.e., there is no Constitutional right to rehabilitation). In contrast, interviewees from countries like Spain, France, and Italy indicate that their courts are bound by their laws to provide a rehabilitative response for offenders; rehabilitation is essentially a constitutional right.

According to an interviewee from Argentina, special courts for social issues are not needed in that country because judges must take into account the social context as mitigating considerations in their sentencing of all offenders, according to the criminal code, Article 34. This code instructs judges to consider social issues (drug addiction, homelessness, mental illness) and whether these issues suggest the defendant should receive a lighter sentence. Judges can find that a particular offender needs rehabilitation (e.g., psychological treatment) rather than (or in addition to) punitive measures like prison. Offenders are sentenced to a government treatment center where they will receive help with these issues. Retribution is also a purpose of the courts, but only if the person is legally responsible. If the judge thinks a defendant experienced social issues, the judge can decide that the defendant is not responsible. This will ensure that the defendant receives treatment and avoids prison.

Interviewees from other European countries (e.g., Germany, Netherlands) indicated that their countries also operate under the assumption that offenders deserve rehabilitation. They have judicial rehabilitation programs in which the judge and probation officers use a network of government resources (e.g., government-operated psychiatric centers) and some private resources (e.g., community employers) to help offenders prove to society that they have reformed. These are not technically problem solving courts as defined in this article, but they achieve many of the same goals. In part because of these court efforts, there are no problem solving courts in most countries with judicial rehabilitation courts.

The next factor which helps create hypotheses as to why some societies do not adopt problem solving courts is related to perceptions of the roles of the judge, court, and legal system. In the USA, the prevailing belief is that the role of a judge and the legal system is to adjudicate consequences for wrongdoing—not coordinate services to help the wrongdoers. Judges might hesitate to be involved because they do not feel qualified to address issues such as mental health and drug use (Nolan 2009). Indeed, law schools typically do not provide education that would assist judges and lawyers in carrying out a problem solving court (Brank and Haby 2013).

Other judges might hesitate because they feel that this role would make them too much of an activist (Nolan 2009). Occasionally, judges are criticized for trying to create social change. The interviewee from Columbia indicated that a court there had ordered Congress to solve social issues related to displacement of citizens due to the arms conflict; this was very controversial because it was outside the typical role of judges (i.e., to address the individual offender before them). Although that is not an example of the creation of problem solving courts, it is an example of judges taking initiatives to address social issues. Similarly, entrepreneurial judges in the USA stepped outside of their role in adopting the first drug courts to address the social issue of drug abuse, as noted above. The interviewee from France indicated that judges would not have the power to create new courts like the US judges did, so few would even try (yet, they have a strong network of rehabilitation services within their regular courts so problem solving courts are not necessarily needed). Similarly, in Ecuador, the Constitution adopted in 2008 holds that the ideal is to keep people out of prison; under this principle, judges could put offenders on probation and order them to treatment. Yet, many judges fear of being so entrepreneurial. Thus, there is diversity in the willingness of judges to take the lead in shaping the legal system’s response to social issues; this willingness might relate to the development of problem solving courts.

Such concerns about the appropriate role of a judge date back to one of the earliest problem solving courts. In 1910, New York City’s Women’s Night Court was criticized for trying to help women leave prostitution. It was believed by some that addressing social issues was not the role of the courts (Quinn 2006). Even today, many countries hesitate to allow judges to become case managers. The interviewee from Ecuador indicated that there are no state-funded treatment centers for drug addiction. There are some private (usually religious) centers, but the government has yet to fund treatment. Other countries do address social issues, but not through the courts. The interviewee from Columbia indicated that social issues are addressed by Congress and other lawmakers, not by the courts. For instance, the mayor of Bogota addressed the issue of drug addiction by opening a rehabilitation center for people with addiction. There also are private community centers that could help people experiencing social issues (e.g., illegal prostitution). As such, judges are not expected to help these people; it is not their role.

Similarly, an interviewee indicated that, in Finland, the prevailing notion is that the social care system and criminal justice system should not be mixed and, thus, judges do not have authority to order a defendant to attend rehabilitation services. A problem solving court would not be feasible in countries with such beliefs. In contrast, in the USA, a few charismatic and entrepreneurial judges re-created their roles to include problem solving courts. They took steps to create special courts and obtain the authority to conduct them. Countries with strong leaders dedicated to the cause could bring about change resulting in problem solving courts, even if it is beyond their traditional role.

Because the role of judges varies differently based on the country’s model of jurisprudence (adversarial versus inquisitorial), this might relate to whether a court has problem solving courts. In the adversarial system, judges are merely referees and the attorneys control the trial (within evidentiary rules) and the accused is not forced to testify (Shahidulla 2014). In contrast, in the inquisitorial system, judges play a major role in searching for evidence and deciding what will be presented. The judges question the witness and the accused defendant is legally required to testify (Shahidulla 2014). This dichotomy is not a strict one, as countries have adopted models that are a mix of the two, or use a combination of the two in different crimes (NCJRS 1981). Even so, the roles of the judges in each model might relate to how social issues are dealt with in the courts. France, the Netherlands, Italy, and Spain all have the inquisitorial model (Ainsworth 2015; NCJRS 1981; Shahidulla 2014)—and all are discussed here as being countries in which problem solving courts are not needed. Judges in these countries are hands-on in the traditional inquisitorial system and thus play a major role in providing services to the offender; yet, they would not be considered special problem solving courts because they are just doing business as usual. It is not as clear whether the role of adversarial model judges relates to adoption of problem solving courts. Countries such as the USA, Canada, and England have both the adversarial system and problem solving courts; countries such as Columbia and Ecuador have adversarial systems but do not have problem solving courts (Ainsworth 2015; NCJRS 1981; Shahidulla 2014). Thus, the role of the judge—as determined by the model of justice—might or might not influence the development of problem solving courts.

Finally, some countries might not adopt problem solving courts because their legal system is not yet developed enough or they have other pressing issues requiring their resources (Miller and Herron 2019). According to interviewees, while countries such as France recognize a plethora of social issues to be worthy of addressing through their courts, countries such as Columbia do not address these social issues in part because their legal system is tackling broader issues such as arms conflicts and human rights violations such as kidnapping, rape, and murder. Many citizens are displaced after fleeing their homes for safety. There is little time, money, or effort left to develop problem solving courts that would provide individualized treatment for defendants experiencing social issues. Interviewees from some countries, like Ghana, indicate that there is a constant struggle with government corruption and disorganization; without a solid basic court system, it is difficult to provide more advanced problem solving courts. Thus, some countries might not have problem solving courts in part because they have other legal priorities that demand their limited attention.

Conclusion

Social scientists have long recognized that culture affects the development of social behavior, social structures, and social procedures (Glendon et al. 1982). Thus, it is no surprise that culture shapes whether a country considers something to be a social issue and whether their government chooses to address this issue through the legal system generally or through problem solving courts specifically. Problem solving courts address criminogenic risks and wrongdoing in a novel way instead of the one-size-fits-all approach of traditional courts. This approach is not necessarily appropriate for every country, however. Even when courts do adopt problem solving courts similar to that of another country, the procedures usually are morphed to fit their own culture (Nolan 2009).

Results of this inquiry revealed that a number of hypothesized factors that seemingly encourage the development of problem solving courts. The hypotheses identified in the typology include practical reasons (e.g., community demand); changes in legal or social structure; advances in medicine, social science, and technology; and recognition of the social issue (with or without a specific event or movement) as a problem worthy of legal attention.

Other hypothesized factors seemingly discourage the development of problem solving courts. Those identified in the typology include lack of resources or demand; fear of negative outcomes; belief that equality prohibits the provision of special courts for only some offenders; legal requirement for all courts to provide rehabilitation; perceptions that it is not the courts’ role to help; and the presence of broader social issues demanding the country’s attention.

These hypothesized factors—alone or together—can influence whether a country adopts problem solving courts for one or more social issues. Taken together, the factors are all generally related to ability, community sentiment, and society. Ability relates to a variety of resources. Problem solving courts need judges, offenders, and treatment providers all willing to participate. They need money, living accommodations, treatment centers, science, and technology. The country has to be at an economic and legal stage of development that would allow leaders to focus on such social issues.

Community sentiment refers to the beliefs, perceptions, and attitudes of a group (e.g., all citizens) or a sub-group (e.g., policymakers) of people from a particular culture or society (Miller et al. 2015). Beliefs in equality and rehabilitation can influence the adoption of problem solving courts. So too can the attributions of crime, as the recognition of social issues as contributors to crime is critical to the adoption of problem solving courts. Sentiment about the role of the courts and the legal system (e.g., to help offenders and to address social issues) might also encourage or discourage legal actors.

Social movements, shifts in policy priorities, and development of the legal system as a whole can influence the adoption of specialty courts. As churches stop handling “family matters,” the courts step in and do so. As legal education and legal systems advance, problem solving courts become a possibility. Historical events such as feminist movements and high-profile incidents can bring social issues to leaders’ attention, prompting changes including the adoption of problem solving courts.

Understanding the reasons why countries do or do not adopt problem solving courts is an important part of understanding this legal phenomenon. For many countries, problem solving courts are not appropriate or feasible; other countries are only a social movement away from adopting such courts. A cost–benefit analysis of such courts is beyond the scope of this article (see Wood et al. 2018), but should be strongly considered by both jurisdictions that already have problem solving courts and those that are thinking of developing such courts. As this typology indicates, culture and society likely play an important role and thus should be considered along with the more practical costs and benefits of problem solving courts.

Future research should continue to develop hypotheses related to the adoption of problem solving courts. This typology is by no means complete; it merely hypothesizes about some factors but acknowledges there are likely others that were not mentioned by interviewees in these 14 countries. It is likely that some factors were not mentioned by any interviewee. For instance, it is worthy of note that many countries that adopt problem solving courts are English-speaking (USA, Australia, England, Canada), while many of those that do not have the need for problem solving courts as discussed above speak other languages (e.g., France, Spain, Italy). Next, it is possible that individualistic cultures (e.g., the USA) and collectivist cultures (e.g., Japan) might differ in their adoption of problem solving courts or other methods of addressing social issues. Finally, the organization of a country’s political system might relate to the adoption of problem solving courts. The USA has a decentralized administration which leaves much power to the states, cities, and counties. Other countries have different systems, and this difference might relate to the adoption of problem solving courts. While the hypotheses offered in this typology are a good start, the typology likely does not include every single influence on whether a country adopts problem solving courts.

Future research should test the hypotheses included in this typology using both longitudinal and cross-sectional designs. Such research should include more countries and a thorough cultural analysis based on psychology and sociology theories. A quantitative analysis is needed to measure indicators related to these hypothesized factors in both countries that do and do not have such courts. Specifically, quantitative analyses like Sutton’s (1988) are needed to more precisely identify influences on adopting this legal innovation and its variants. Acquiring data internationally is difficult, and even operationalizing what problem solving courts ARE is difficult, as noted above. A quantitative analysis of courts is beyond the scope of this article, but would be an important future study to supplement the qualitative analysis presented here.

While this article stops short of testing the typology, its qualitative analysis is a good starting point for identifying hypotheses that appeared after analysis of over a dozen countries on several continents. These 11 factors hypothesize about some influences on the development of problem solving courts and thus provide insight as to the history—and future—of problem solving courts.