Spitzer: It’s OK to go ahead and come out from behind the bench

Recently I have noted in several forums, including the pages of Indiana Lawyer, a call to conservatism on the bench, and a plea to our colleagues to avoid judicial activism when donning the robe.

Chief among the vices identified are problem-solving courts and “engaging in advocacy in legislative bodies.”

I have been a problem-solving court judge since 2008, and am the Vice President of the Indiana Judges Association, so, alas, am guilty on both charges. I think of myself as a lifelong conservative, so these calls to non-advocacy prompted some self-examination.

The recommendation to refrain from advocacy in legislative bodies is an easily constructed straw man. However, like many things, the devil is in the details.

It is true that the judicial branch weighs into the legislative process more frequently than in the past. Upon closer examination, however, one will note that our role is nearly always to vet proposed legislation before passage to make sure it does not violate that most important of laws – the law of unintended consequences.

How often over the years when we were interpreting a law have we found ourselves saying “What were they thinking?” Recently, legislators are more likely to run proposed legislation past judges to ask the question: “How will this work in the real world?”

As an Indiana Judges Association officer and board member, I’ve often heard legislators express their appreciation for this role that we play, particularly in the present environment where increasingly fewer legislators are lawyers.

Rightly considered, this role in the legislative process is much more brake than accelerator, a role which I find quite consistent with conservatism’s first principles.

In this role, Judges seldom advocate for or against proposed legislation, except when it seeks to enhance or remove our discretion.

The second straw man assembled by these critics is the problem-solving court. They assert that the judge is not a “team member,” but is an independent actor who should remain above the fray and avoid collaborative decision-making.

This assertion belies a fundamental misunderstanding of the judge’s role in a problem-solving court.

The judge does not relinquish his or her primacy when presiding over a problem-solving court. Sanctions, incentives, and responses to behavior imposed in a problem-solving court are in the end, the judge’s call. Full stop.

This does not mean, however, that the judge’s discretion cannot be informed by members of the team that the judge leads, whose training and experience in the areas of substance dependency and mental health can help identify how one approach or the other might serve the ends of law-abiding recovery and stability and thus reduce recidivism and enhance public safety.

We have long received the opinions of experts to aid in our decision-making. It is no different when we do so in the context of a problem-solving court.

It seems that these critics’ primary beef about problem-solving courts is that they don’t represent our “traditional” ideas of criminal justice.

To be sure, new, in this sense, is somewhat relative. Drug courts — the first problem-solving courts — have been around since the ‘80s and seem to be here to stay. Indiana has well over 100 problem-solving courts and there are well over 4,000 in the United States and around the world.

Drug courts are the most comprehensively studied intervention in the criminal justice system, and the evidence for their effectiveness is overwhelming. However, in a system where very little is new under the sun, an intervention that is over 35 years old could perhaps be characterized as novel.

This begs the question then — should problem-solving courts be anathema to conservatives?

In a plea for adherence to conservative first principles, G.K. Chesterton cautioned, “Don’t ever take a fence down until you know the reason it was put up.”

Here it seems we can find answers in the earliest of first principles. Each of us, before taking the bench, took an oath to “support the Constitution and the laws of the United States and the State of Indiana.”

Last month, I did it for the fourth time as a judge, after also having done so as a lawyer, a deputy prosecutor and a city attorney.

Indiana’s unique Constitution placed Article 1 Section 18 in its enumerated Bill of Rights, which states: “The penal code shall be founded on the principles of reformation, and not of vindictive justice.”

Consistent with these first principles, when updating and recodifying our Criminal Code, our General Assembly decreed that Title 35 “shall be construed in accordance with its general purposes, to … reduce crime by promoting the use of evidence based best practices for rehabilitation of offenders in a community setting … .” Problem-solving courts themselves are creatures of legislation found in Title 33.

If we are to take our oath seriously, we do well to recognize problem-solving courts’ role in the administration of justice. Certainly, there was a time when judges considered that if a little jail or prison was good, a lot was better. When all you have is a hammer, everything looks like a nail.

It is not wrong, however, to question whether those were better times. It would not seem that Indiana’s founders would agree with the pendulum swing toward vindictive justice, if our constitution is to be taken seriously. We know now that jail or prison never cured substance dependency or mental illness, and nothing drives that point home more than time on the bench presiding over a criminal docket.

Jonah Goldberg observed, “Conservatism is not supposed to be against change or progress … It is supposed to be skeptical of grandiose or reckless schemes which throw out the good in pursuit of the perfect.”

Problem-solving courts are neither grandiose nor reckless. Rather, they are a vehicle by which Indiana’s public safety has been enhanced by thousands of Hoosiers who, with the help of treatment professionals, probation officers, peers, law enforcement, community members and — yes — judges, threw off the shackles of dependency and mental illness and became law-abiding citizens and taxpayers.

As we don our robes to preside over our problem-solving courts, we become symbols of personal accountability and, as our Constitution requires, amenability to “reformation”. This, in my estimation, is a role worth conserving.•

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As a part of his general jurisdiction docket, Grant Circuit Judge Mark Spitzer presides over Grant County’s Adult Drug Court and Veterans Treatment Court.