Court Involvement Research Articles

Kenya in the Shadow of the ICC: Complementarity, Gravity and Impact

Following contested elections in late 2007, Kenya experienced brief but significant violence. International pressure and diplomacy led to a coalition government, and a commission of inquiry recommended the creation of an internationalized criminal tribunal or International Criminal Court (ICC) involvement, should a tribunal not be created. The government of Kenya both promised to create a hybrid tribunal and to cooperate with the ICC, yet has arguably done neither, engaging in delaying tactics for about a year before the prosecutor requested approval to open an investigation. The specific situation presented by Kenya requires careful analysis of two key principles of admissibility in the Rome Statute, gravity and complementarity. This article, based on fieldwork and interviews in Kenya and in The Hague and on judicial decisions and prosecutorial policy documents, examines the treatment of these to date, emphasizing the use and abuse of the concept of positive complementarity.

Psychiatrist Finds Mission in Hard-to-Treat Patients

Psychiatrist Finds Mission in Hard-to-Treat Patients

THE PROCEDURE OF ELECTION LAW IN FEDERAL COURTS

Much attention is paid to the substantive outcomes of election law decisions. But little scholarship focuses on the mechanisms by which election law cases traverse the federal courts. This article fills that void. The article first identifies the goals Congress should try to achieve in creating special procedures for election law cases. Congress has deemed election law cases to be particularly important given the foundational issues at stake in resolving election law disputes. Accordingly, the legislature has created various procedural mechanisms to shepherd these cases through the federal courts. What goals should underlie these processes? Based on the importance of election law cases to the foundation of our representative government and the history of judicial involvement in elections, election law court procedures should try to achieve the following goals: timeliness, accuracy, legitimacy, minimization of ideology, maximization of each judge’s skills, and signaling of the importance of election law cases to our democratic order. Although these goals may certainly be laudable for all cases, they are particularly important to elevate in the election arena given the high stakes involved and the importance of fair elections to the functioning of our democracy. Next, the article dissects the three ways federal courts hear election law cases. First, a case can follow the “traditional” three-tiered path, starting with a single district judge, with direct appeal to a three-judge panel of the court of appeals and discretionary en banc or Supreme Court review. Second, certain cases start with a three-judge panel of the district court, which is comprised of two district judges and one circuit court judge, with direct mandatory appeal to the Supreme Court. Third, in a minority of election law cases, a dispute originates with a single district judge, who certifies nonfrivolous constitutional questions to the en banc circuit court, with certiorari review at the Supreme Court. The article explores each of these mechanisms, highlighting the intended and unintended consequences of each system. In particular, the article evaluates whether each process meets the six goals for federal court involvement in election law cases. The article concludes by proposing, for all election law cases, a procedure that elevates these ideals: a modified form of the en banc certification process used in some federal court cases (which I term modified direct en banc review). This system best achieves the important goals identified earlier in the paper and streamlines federal court involvement in elections.

Pathways and Predictors of Juvenile Justice Involvement for Native Hawaiian and Pacific Islander Youths: A Focus on Gender

Despite the growth of Native Hawaiian and other Pacific Islander (NHOPI) youths in court and correctional involvement, studies of their delinquency and juvenile justice involvement are quite limited, and the literature becomes almost nonexistent when examining gender differences. Using case file analysis of 150 Native Hawaiian/part-Hawaiian and Pacific Islander juvenile offenders, this article addresses this dearth of research by showing NHOPI's overall backgrounds and pathways to delinquency and youth corrections, ascertaining gender differences in such pathways, and analyzing those factors that impact incarceration. Overall, chronic law violations, crystal methamphetamine addiction, and death of an important adult emerged as the significant pathway predictors of correctional involvement, whereas official child welfare/protective service records of physical abuse and neglect decreased juveniles' odds of commitment. Underscoring gender, this article also shows how NHOPI girls have more extensive histories of sexual abuse, suicidal ideation, and crystal methamphetamine use than their male counterparts despite having less serious offense histories, and are more likely to be committed for probation violations. This article concludes with recommendations for social work policy and practices.

The Role of Ethiopian Courts in Commercial Arbitration

The role of arbitration in settling disputes which involves national and transnational commercial transactions is steadily growing in this era of globalisation. International and national rules governing various aspects of commercial arbitration have contributed to the effectiveness of arbitration as an alternative to litigation. The involvement of national courts is crucial to the overall efficacy of arbitration, both domestic and international. Instances calling for court intervention may appear at all stages of the arbitral proceedings. There is, however, a need to maintain a balance between the level of court involvement and the smooth functioning of arbitration – which is a contractual alternative to judicial dispute settlement. This article deals with the legal and practical role of Ethiopian courts during the three stages of arbitral proceeding, i.e., at the beginning of arbitration, during the arbitral proceedings, and after the end of the arbitration. And finally, I argue in favour of judicial restraint particularly during the first two stages of arbitral proceedings. Key words: Commercial Arbitration, Ethiopian courts, arbitral proceedings, judicial restraint

The Judicial Invention of Property Norms: Ellickson’s Whalemen Revisited

Robert C. Ellickson has argued that whalemen developed norms to settle arguments over contested whales. These norms, Ellickson explained, were largely adopted by courts as the property law of whaling. Ellickson’s point is that whaling norms “did not mimic law; they created law.” Ellickson is certainly correct that the close-knit community of nineteenth century American whalemen managed to settle disputes in ways which maximized group welfare. What Ellickson has failed to recognize is that that the means by which whalemen resolved disputes without violence or frequent involvement of courts was built not upon widely accepted norms, but rather upon the application of some rather general maxims that were often poorly understood even by experienced captains and crews. Whaling disputes were, in fact, most often settled through compromises grounded in inchoate notions of what constituted honorable behavior arising out of the particular situation and parties involved.In seeking to settle the handful of litigated disputes, judges drafted opinions that suggested a level of agreement among whalemen as to prevailing norms that never existed at sea. The scholarly acceptance that judges accurately stated whaling customs explains the mistaken belief that whalemen created the American property law of whaling. Instead, judges and the lawyers who represented ship owners were to a large degree responsible for creating much of what came to be memorialized in legal treatises by the end of the nineteenth century as the property law of whaling.A close examination of trial transcripts and depositions from two of the five whaling disputes from the Sea of Okhotsk that were litigated in the nineteenth century reveals the vagaries of whaling norms and the problems in using judicial opinions to recover such practices. In Heppingstone v. Mammen, it is impossible to draw from the testimony of crew members and expert witnesses anything resembling a norm upon which battles over contested whales could be resolved at sea or in court. The court’s misunderstanding in Swift v. Gifford of whaling practices was quickly accepted by legal scholars as definitive evidence that the whaling fleet in the North Pacific had adopted a single standard for determining when an interest in a fleeing whale ripened into ownership.Whalemen in the Sea of Okhotsk proved adept at resolving controversies on a common sense, ad hoc basis without universal norms. The close knit nature of their community, the intensely communal nature of their competition, and the economic pressure to settle disputes allowed Okhotsk whalemen to resolve contests without the aid of well settled norms.

"The Chain Has to Be Broken": A Qualitative Investigation of the Experiences of Young Women Following Juvenile Court Involvement.

Whereas the number of girls involved in the juvenile justice system is on the rise, little is known about female juvenile offenders after they reach adulthood. This study aims to explore the meaning that young adult women ascribe to their juvenile court experiences and assess their perceptions of facilitators and barriers to progress in their adult lives. Data on services and support are presented from nine semistructured interviews. Findings include the commonality of mental health issues, substance abuse, and problematic relationships with intimate partners. Implications for service provision and policy, as well as future research directions, are outlined.

Retention of adolescents with substance dependence and coexisting mental health disorders in outpatient alcohol and drug group therapy

The aim of this study was to investigate characteristics that might enhance retention among adolescents attending outpatient alcohol and drug group therapy within a youth mental health setting. An important goal was to provide information for nurses and other clinicians who work with adolescents with coexisting substance use and mental health disorders. A retrospective file audit reviewed the files of 64 adolescents who attended a weekly alcohol and drug group between 2002 and 2004. Five characteristics were shown to have a significant impact on enhancing participant group retention. These were Māori and Pacific Island ethnicity, past or current legal charges, youth drug court (YDC) involvement, having a diagnosis of cannabis dependence, and a diagnosis of conduct disorder. Logistic regression found that YDC involvement on its own significantly predicted treatment retention. In an area of limited research, the findings from this study expand the literature on enhancing treatment retention for a vulnerable and hard-to-engage adolescent group with complex treatment needs, and highlight the need for further investigation of the potential role of the YDC. From a practice perspective, the findings support group therapy interventions as a cost-effective treatment modality for assisting adolescents with coexisting substance use and mental health issues, including those with conduct disorder and YDC involvement.

A testable theory of problem solving courts: Avoiding past empirical and legal failures

Recent years have seen a proliferation of problem solving courts designed to rehabilitate certain classes of offenders and thereby resolve the underlying problems that led to their court involvement in the first place. Some commentators have reacted positively to these courts, considering them an extension of the philosophy and logic of Therapeutic Jurisprudence, but others show concern that the discourse surrounding these specialty courts has not examined their process or outcomes critically enough. This paper examines that criticism from historical and social scientific perspectives. The analysis culminates in a model that describes how offenders are likely to respond to the process as they engage in problem solving court programs and the ways in which those courts might impact subsequent offender conduct. This Therapeutic Jurisprudence model of problem solving courts draws heavily on social cognitive psychology and more specifically on theories of procedural justice, motivation, and anticipated emotion to offer an explanation of how offenders respond to these programs. We offer this model as a lens through which social scientists can begin to address the concern that there is not enough critical analysis of the process and outcome of these courts. Applying this model to specialty courts constitutes an important step in critically examining the contribution of problem solving courts.

Guiding Regionalism and Reform from the Court: Judge John Feikens

For decades, federal district court judges have been deeply involved in the reform of state and local government agencies. Some scholars describe such a judicial role in institutional reform as “managerial.” This profile examines the managerial role of Judge John Feikens, who, since 1977, has supervised the Detroit Water and Sewerage Department's attempts to comply with federal laws on wastewater treatment and water quality. Through his sustained, effective oversight, Feikens became an influential mediator of metropolitan cooperation. His persistence in resolving metropolitan conflict may be viewed with concern by those who worry about lengthy court involvement in public administration. However, this insightful profile underscores poignant contemporary lessons, even from judicial actions, for enhancing metropolitan problem solving.

Agency Empowerment through the Administrative Litigation Law: Court Enforcement of Pollution Levies in Hubei Province

AbstractThe existing literature on China's 1989 Administrative Litigation Law (ALL) has rarely discussed a minor provision that permits administrative agencies to enlist court assistance in enforcing administrative decisions. Focusing on court enforcement of pollution levies, this study examines how and why ALL has been employed so extensively by administrative agencies, environmental protection bureaus (EPBs) in this context. The study is based on interviews with judges, EPB officials and polluters involved in court actions as well as court statistical data from 1992 to 2005 for Hubei province. EPBs' heavy reliance on court enforcement for collecting pollution levies and fines resulted from incentives that encouraged the formation of mutually beneficial relationships between courts and EPBs in the 1990s. Court involvement has enhanced EPBs' enforcement powers, but the courts' engagement in enforcement has neither curtailed EPBs' arbitrary exercise of discretionary power nor induced polluters to reduce waste discharges.

Trajectories of desistance and continuity in antisocial behavior following court adjudication among serious adolescent offenders.

Because many serious adolescent offenders reduce their antisocial behavior after court involvement, understanding the patterns and mechanisms of the process of desistance from criminal activity is essential for developing effective interventions and legal policy. This study examined patterns of self-reported antisocial behavior over a 3-year period after court involvement in a sample of 1,119 serious male adolescent offenders. Using growth mixture models, and incorporating time at risk for offending in the community, we identified five trajectory groups, including a "persister" group (8.7% of the sample) and a "desister" group (14.6% of the sample). Case characteristics (age, ethnicity, antisocial history, deviant peers, a criminal father, substance use, psychosocial maturity) differentiated the five trajectory groups well, but did not effectively differentiate the persisting from desisting group. We show that even the most serious adolescent offenders report relatively low levels of antisocial activity after court involvement, but that distinguishing effectively between high-frequency offenders who desist and those who persist requires further consideration of potentially important dynamic factors related to this process.

A personal statement on my court involvement

Crime, conviction, prosecution and imprisonment are all fundamentally about failure. For me, it was a failure to be able to support a wife and three children. In 2000, my income and my assets took a precipitous fall. I had not attended to and did not value a support network. I was not involved in my community. For myself and many urban professionals, my self-worth was my work and checkbook. When that evaporated, so did my self esteem and happiness. I desperately tried to hang onto my lifestyle and a chance to recapture my wealth. The offense that I was convicted of was 1-count of mail fraud. It essentially means that I misrepresented the assets of a partnership that I controlled in order to disguise money I removed from the partnership. I wanted to pay it back, but I was not authorized under the terms of the partnership to do what I did. There is not a day that goes by that I do not regret my actions with respect to that crime. Needless to say, like many others, I was caught. I lost my home, wife, children and went to prison. It all happened at a glacial, excruciating pace. Yet, as with any

JUVENILE COURT FOR YOUNG ADULTS? HOW ONGOING COURT INVOLVEMENT CAN ENHANCE FOSTER YOUTHS' CHANCES FOR SUCCESS

States wishing to extend foster care supports to young adults under the Fostering Connections to Success Act are required to meet all the requirements of Title IV‐E, which include regular reviews that have traditionally been conducted in juvenile courts. For some, this requirement of ongoing judicial involvement is a reason to forgo this significant source of new federal dollars. Others are seeking ways to minimize ongoing court involvement while still complying with federal requirements. This article argues that these views are misguided. Designed properly, juvenile court reviews can play a unique and important role in helping young adults begin to take responsibility for their own futures.

National Courts and International Arbitration: A Double-edged Sword?

International arbitrations play a key role in resolving cross border commercial disputes. Parties choose international arbitration primarily because it enables the parties to have their disputes adjudicated without any involvement of national courts. It is clear that the supervisory role of national courts is necessary for the proper conduct of international arbitrations and to ensure that the arbitral process meets the due standards of fairness. However, in recent times, the involvement of national courts in aid of effective arbitrations seems to be a growing concern since their involvement tends to hinder the arbitral process rather than protecting the same. In many cases, it can be seen that the supervisory and curial powers are being misused by national courts, the victims of which are parties to international arbitrations. This is most apparent in the Asian subcontinent. This paper discusses in detail the problems arising out of the national court’s role in international arbitrations and highlights few of the leading cases where the national court’s involvement has adversely affected international arbitrations. It also notes the possible dangers associated with undue interferences by national courts which may give rise to state liability under international law. In this connection, the recent landmark decision of Saipem v. Bangladesh is analyzed which sends a clear warning to all national courts exercising supervisory jurisdiction over international arbitrations to exercise their powers cautiously.

Predictors of Continued Conflict After Divorce or Separation: Evidence From a High-Conflict Group Treatment Program

High-conflict divorces appear to be different than other divorces due to the magnitude of ongoing hostile interactions and court involvement. This study assessed whether agreement, communication, and the beliefs that co-parents held regarding child welfare contributed toward conflict of divorced or separated co-parents. Results suggest that co-parents' communication and ability to agree with each other differed significantly based on the number of times they returned to court. Co-parents' agreement and their beliefs regarding child welfare predicted their perceived relationship quality. The findings indicate that these factors would likely be useful to address in treatment practices.

Drug Abusing Women in the Community: The Impact of Drug Court Involvement on Recidivism

Developing community-based options for drug abusing women is important for a variety of reasons. One option that shows promise is the treatment-oriented drug court. Although drug courts enjoy considerable empirical support, relatively few studies have examined the efficacy of this model for women. The current study uses a quasi-experimental design to compare outcomes between a sample of moderate to high-risk drug court participants (n=91) and probationers (n=80). Over the course of an average two year follow-up period, female drug court participants were found to have significantly lower rates of recidivism than their probation counterparts. The results of an event history analysis confirmed that drug court participants were significantly less likely to recidivate even after controlling for differences in length of follow-up. These findings provide support for the ability of drug court programs to successfully treat drug-involved women.

Letter

Back to table of contents Previous article Next article LetterFull AccessLetterErik Roskes M.D.Erik Roskes M.D.Search for more papers by this authorPublished Online:1 Sep 2009https://doi.org/10.1176/ps.2009.60.9.1273AboutSectionsView articleView PDFView EPUB ToolsAdd to favoritesDownload CitationsTrack Citations ShareShare onFacebookTwitterLinked InEmail View articleThe Role of Coercion in Public Mental Health PracticeTo the Editor: In the July issue Moser and Bond ( 1 ) raise the important question of coercion in public mental health practice. Unfortunately, their article misses several important points. First, the word "forensic" does not appear in the article. Most states are dealing with expanding populations of justice-involved consumers in inpatient and outpatient services. For example, at the hospital where I work, the forensic population has increased from 28% in 2003 to 65% currently. Assertive community treatment teams, the article's focus, are often used as a promising approach to complex, justice-involved patients ( 2 ). It would be helpful to know the percentage of consumers in the programs studied who had court involvement, because the criminal justice system is inherently coercive. Clinical teams wishing to avoid coercive interventions often are avoiding collaboration with the justice system, exacerbating the problem of criminalization. Second, coercion is a continuous variable, is relative, and is an important, if unstated, aspect of every relationship. Usually, the choice is not between X or not X (where X is the undesired intervention) but rather between X and Y (where both X and Y are undesired interventions).For example, the authors erroneously state that "[d]epot injections of antipsychotic medication, often used with resistant and nonadherent consumers, virtually eliminate choice for two to four weeks." Injections may in fact be required by providers or a court as a condition of outpatient treatment. The consumer can accept the injections or refuse them and remain hospitalized.Furthermore, even assuming for argument's sake that injection removes choice, it removes only one choice—that of taking medication. The consumer retains many other options, such as where to live and what sort of food to eat. The consumer also has the option to refuse the injection, albeit with possible adverse consequences. This is no different from an employee's refusal to comply with an undesired directive, albeit on pain of losing his or her job.In addition, many coercive interventions require assessment of decision-making capacity (such as the ability to manage funds effectively in assignment of a representative payee) or of dangerousness (in civil commitment). The authors ignore this issue. Third, the authors found that the strongest predictors of a team's use of coercive interventions were the percentage of consumers with schizophrenia spectrum disorders and with active substance use. Both groups of disorders are associated with poor insight and denial of illness ( 3 , 4 ). Such individuals are prime candidates for involuntary interventions, and it is not surprising that these two factors predict use of coercive interventions. Finally, the authors do not comment on outcomes of treatment provided with and without coercion for similar groups of patients. This is the most important area for future study: are coercive interventions useful in changing a person's life course? If they are, they will continue to be used, regardless of how uncomfortable the idea of coercion makes us. The authors are correct when they conclude that "excessive use of control should be cause for concern," but they leave us in the dark about the line between appropriate and excessive use of coercive interventions.Dr. Roskes is director of forensic treatment at Springfield Hospital Center, Sykesville, Maryland.

Warrantless Wiretapping, FISA Reform, and the Lessons of Public Liberty: A Comment on Holmes's Jorde Lecture

Author(s): Schwartz, Paul M. | Abstract: This Essay responds to Stephen Holmes’ Jorde Lecture, which was delivered at Boalt Hall on November 5, 2007. It builds on his model of “public liberty” by discussing how private liberty, and information privacy in particular, is a precondition for public liberty. For Holmes, private liberty is largely a negative right—a right to be free from governmental interference. In contrast, this Essay considers privacy to be an element of public rights. Participation in a democracy requires individuals to have an underlying capacity for self-determination, which requires some personal privacy.Through the lens of the recent amendment of the Foreign Intelligence Surveillance Act (FISA), this Essay analyzes a number of Holmesian concepts through. Its Part I describes the background of FISA, the National Security Agency’s (NSA) warrantless surveillance program in violation of this statute, and the amendments to this law in the Protect America Act of 2007, a short term statutory “fix” that has expired, and the FISA Amendments Act of 2008, which remains in effect. Its Part II turns to an analysis of the challenges to private and public liberty posed by the NSA’s surveillance. This Part is organized around three topics: (1) past wisdom as codified in law; (2) the impact of secrecy on government behavior; and (3) institutional lessons. As we shall see, a Holmesian search for the wisdom previously collected in law proves quite difficult. FISA regulated some aspects of intelligence gathering and left the intelligence community entirely free to engage in others. Over time, moreover, technological innovations and altered national security concerns transformed the implications of the past policy landscape. As a result, the toughest questions, which concern surveillance of foreign-to-domestic communications, do not receive an easy answer from the past.Regarding the impact of secrecy on government behavior, the analysis is, at least initially, more straightforward. As Holmes discusses, the Bush administration was adept at keeping secrets not only from the public and other branches of government, but from itself. It is also striking how little Congress knew about NSA activities while amending FISA. The larger lessons, however, prove yet more complicated: strong structural and political factors are likely to limit the involvement of Congress and courts in this area. This Essay concludes by confronting these institutional lessons and evaluating elements of a response that would improve the government’s performance by crafting new informational and deliberative structures for it.

Reduction in Recidivism in a Juvenile Mental Health Court: A Pre‐ and Post‐Treatment Outcome Study

ABSTRACTA review of an evaluation of the Court for the Individualized Treatment of Adolescents (a prototype Juvenile Mental Health Court in Santa Clara, California) is presented along with admission criteria. Participant demographics are described. McNemar Test and Paired T Test results show that study participants committed violent, aggressive, and property crimes in significantly lower numbers in the 23 months following court admission than in the 18 months preceding court admission, despite escalating patterns of antisocial behavior prior to court involvement. The importance of developing multidisciplinary models to address moderately severe offenders with serious mental illness is discussed.