Battered Women's Movement Ideals and Judge-Led Social Change in Domestic Violence Courts

1. The Democratic Responsiveness of Specialized Courts

The 1990s brought a new nation-wide movement towards special courts, now also called problem-solving courts (Berman and Feinblatt 2001; Goldkamp 2002), including drug courts, community courts, mental health courts and domestic violence courts.¹ Contemporary specialized courts have had some success in making the professional domain of criminal justice more porous to the public sphere, to problems experienced by lay citizens in the public sphere, and to social movements organized around these social problems.² The idea is that specialized courts should seek to implement a vision of social change by addressing the "root causes" of the social problems identified by the public, like drug abuse and domestic violence, within the individual, the society and the larger culture. New judicial goals include social outcomes: tangible community results like safer streets and stronger families. And the public continues to stay involved by participating directly in the legal process as these new judges bring citizens in to participate in advisory boards and to organize community service projects for offenders. Specialized courts are thus a breakthrough from a traditional process-and-punish orientation to one based on the idea that the social problems identified by the public are the responsibility of the courts. The result is courts with growing democratic responsiveness.

The genesis of the recent wave of specialized courts can be explained in three ways: public demand, the response of state professionals to public demand, and the overall efficiency, speed, and effectiveness of specialized courts. In recent years, members of the public, aware of a breakdown in social institutions like the family, the community, and the church, have targeted the judiciary as the branch of government most able to respond to resulting social problems such as family dysfunction, quality of life crime, and addiction. The public itself has challenged judges "to become knowledgeable about a social problem and about the received wisdom concerning the most appropriate way to address the problem" (Berman 2000: 84).

And it has not been difficult for judges to respond to these public initiatives given their own frustration with the existing court system. A common thread running through the explanations given by judges who have become problem-solving court judges has been fatigue with "McJustice"—"instead of cans of peas, you've got cases"—and with "having their competence evaluated on how many arraignments they could do" (Berman 2000: 81). Attorneys are similarly motivated: According to Patrick McGrath, deputy district attorney in San Diego, "I think it's fair to say there's a sense of yearning out there [among attorneys]. If you grab a judge, a defense attorney and prosecutor and sat them down together and bought them a round of drinks . . . they'd all complain about the same thing: 'I have all of this education and what do I do? I work on an assembly line. I don't affect case outcomes'" (Berman and Feinblatt 2001: 130). So special court judges motivated by the public, lawyers and their own imperatives have begun to look at individual problems of litigants in the context of larger community and social problems.

Despite being seen as an alternative to "McJustice," special courts nonetheless privilege the efficiency, speed, and effectiveness that are fundamental to "McJustice." Referred to as technocratic or rationalized justice (Heydebrand and Seron 1990)—a move from adjudication to administration—special court innovations have included increased use of pretrial settlement conferences, plea bargaining and dismissed cases as well as informal cooperation among prosecutors, public defenders, judges, and partners outside the courtroom like criminal justice agencies, social service providers, and community groups (Berman 2000: 84-5; Berman and Feinblatt 2001: 134-7). In this way, specialized courts are a response to the growing caseloads and declining resources that characterize most communities today.

It would seem initially that this third aspect of specialized courts, their commitment to technocratic justice—efficiency, speed and effectiveness—would conflict with the first two characteristics—the more idealistic social change aspirations of the public and professionals. It would seem, in other words, that the quantitative aspects of the court world...