Best Practices and Beyond: Exploring the Impact of the COVID-19 Pandemic on Treatment Courts in a U.S. Southern State

Treatment Court Model

Treatment courts, also known as problem-solving courts (PSCs) or specialty courts, are recovery-based interventions that emphasize treatment over punishment by addressing underlying issues that are directly tied to participants’ contact with the justice system (e.g., mental illness or domestic violence) (NADCP, 2022). The first drug treatment court (DTC) was created in Miami-Dade County in Florida in 1989 to combat the increasing number of substance-abusing offenders who were entering the criminal justice system (CJS). Since then, the underlying ideology and model of the first DTC has led to the creation of thousands of treatment courts across the United States. As of August 2021, there are 3,856 treatment courts nationwide (of which 1,728 are adult DTCs) (National Drug Court Resource Center, 2022). There has also been international attention to expanding the treatment court model’s use of therapeutic jurisprudence (TJ) to courts not considered typical PSCs (see Wexler, 2014), including studies that determined treatment court effectiveness within Australia (Kornhauser, 2018); Canada (Gutierrez & Bourgon, 2009); Central and South America (Schleifer et al., 2018); Great Britain and other European countries (Boone & Langbroek, 2018; Bowen & Whitehead, 2015; Gavin & Kawałek, 2020; Kawałek, 2021; Koehler et al., 2014; Nolan, 2017; and Vîlcicᾰ et al., 2010); Japan (Ibusuki, 2019); and Singapore (Koman, 2018). While the treatment courts differ from one another in terms of their focus, the ideology for all treatment courts rests firmly on TJ and diverting people away from incarceration and into community-based treatment and rehabilitative services (Marlowe et al., 2016; Winick, 1997).

TJ lies directly at the heart of the treatment court model. As David Wexler, a cofounder of the science behind TJ, states:

While TJ was developed prior to, and independently from, the first DTC and subsequent treatment courts, it has been invariably linked to these types of courts (Hora et al., 1999; Winick & Wexler, 2003). For example, the Ten Key Components of Drug Courts, which all treatment courts are to adhere to, with slight variations,¹ are outlined in the Department of Justice’s Publication, Defining Drug Courts: The Key Components (1997). The 10 key components are: 1) substance abuse treatment; 2) a non-adversarial approach; 3) early screening and detection of drug court participants; 4) more access to community treatment options; 5) frequent monitoring and drug testing; 6) coordinated strategies to be implemented that involve participant compliance; 7) ongoing judicial interaction with each participant; 8) evaluation of program goals and effectiveness; 9) continuing interdisciplinary education to promote effective drug court planning, implementation, and operation; and 10) forging partnerships with community providers and public agencies to generate local support. While these components are clearly rooted within TJ through the utilization of treatment courts as a social force to produce intended case outcomes, employing the core tenants of each requires another important aspect of the treatment court model: effective intervention (EI).

One of the tenets of TJ is that actors within the legal system should rely on social science to inform their policies and procedures. Like TJ, although EI has been and is currently utilized by treatment courts, it has its origins elsewhere; within the correctional landscape and under the premise that only the most effective interventions should be used to ensure the best possible outcomes (Shaffer, 2010). In accordance with EI, the NADCP has produced two volumes of best practice standards which are supported by over 25 years of research. The NADCP best practice standards provide empirically based recommendations on the following: target population; equity and inclusion; roles and responsibilities of the judge; incentives, sanctions, and therapeutic adjustments; substance use disorder treatment; complementary treatment and social services; drug and alcohol testing; creating a multidisciplinary team; census and caseloads; and monitoring and evaluation (NADCP, 2018a, 2018b). By utilizing the law as a therapeutic agent and using best practices supported by on-going scientific research, treatment courts have positioned themselves to place greater emphasis on the most successful case outcomes, rather than on typical case processing (Lucas, 2020). However, with the onslaught of COVID-19, the best practices followed by treatment courts to ensure successful case outcomes were compromised, and these courts quickly adapted to the changing landscape caused by the pandemic.

Treatment Courts and COVID-19

Successful treatment court operations are supported by several best practice standards established through empirical research, though research on COVID-19 and treatment courts is limited. Recommendations tailored to the pandemic included suspending all new participant intakes, temporarily halting all drug testing and probation contacts in the field, removing brief periods of incarceration as a sanction, and changing treatment modalities to virtual spaces (NADCP, 2020). While the changes made to policy and procedure were invariably necessary, there is no question that they hurt the treatment court model, thereby potentially decreasing their effectiveness. One of the greatest changes treatment courts had to adhere to was the elimination of face-to-face meetings with participants held within respective courtrooms during status hearings, which is a core feature of all treatment courts. As noted by Judge Lerner-Wren, who presided over the nation’s first mental health court (MHC), “In a court that applies therapeutic jurisprudence not necessarily what a judge says but how the court process is experienced is what remains with clients and their families after the court session has ended” (Lerner-Wren & Eckland, 2018, p. 17). In response to these challenges, many courts found creative ways to continue meaningful interactions with participants outside of the courthouse.

Early in the pandemic, treatment courts were advised to limit court staffing procedures and status hearings. Courts could also opt to conduct activities using virtual means or suspend activities altogether if they were unable to do so. Regardless of action, all courts were advised to communicate changes to participants through both verbal notice and in written form (Hardin & Sydow, 2020). Later reports detailed changes to treatment courts made throughout the United States, including in direct response to many of the considerations offered by the NADCP. The Center for Court Innovation found that of the courts who provided survey responses (n = 24), many had transitioned to teleservices for important court functions, such as case management, court staffing and sessions, clinical assessments, and community. Specific innovations included the use of drive-through status hearings, as well as increasing contact with participants through electronic means. Meaningful online group activities such as arts and crafts were also arranged with court participants so that regular interaction and supervision could continue (McCarthy & Christofferson, 2020). A separate study that sampled Bureau of Justice Assistance (BJA) grant recipients across the United States (n = 172) echoed many of the same findings; 58% of the courts moved entirely online with another 22% operating in a hybrid model following the COVID-19 outbreak (Zilius et al., 2020). While these reports give insight into how traditional courts have altered their operations in response to the pandemic, more research on treatment court providers’ experiences is needed. The current study adds to literature on treatment courts and pandemic responses by examining the experiences of treatment court professionals. This study also gives more context to the phenomenon by considering measures of perceived safety after the courts had enacted operational changes.

Research Design

The current study utilized a mixed-methods design consisting of an online survey that included both quantitative and qualitative components and followed best-practices of online survey administration (Dillman et al., 2014). Thirty treatment courts and corresponding coordinators currently operating in a southern state were identified and categorized in the following allocations: 18 drug treatment courts, 7 mental health courts, and 4 veterans treatment courts (see Figure 1 below for courts and affiliated jurisdictions).

Figure 1

Three waves of invitations were sent to the treatment coordinators between April and May 2022 which identified the study’s primary purpose, contact information for the researchers, and provided each recipient with a link to the survey instrument. After the three waves of invitations to participate in the survey, the researchers received 13 responses from treatment court coordinators who were affiliated with DTCs, MHCs, and VTCs. While the response rate for the current study was less than half (44.8%), it is important to note that, while Internet surveys are a popular alternative to traditional survey modes, their response rates are typically lower than those of mail surveys (Manfreda et al., 2008). In addition, the COVID-19 pandemic has caused a rise in survey-based studies because of increased research activity among scientists while restricting data collection methods. Therefore, it is possible that an increase in survey dissemination has led to survey fatigue, which is characterized by decreased response rates (de Koning et al., 2021).

Measures

Demographics. The first section of the survey requested demographic information from the respondents. Questions were posed that requested identification about respondents’ gender, age, race/ethnicity, and their highest level of education. Respondents were also asked how many total years of experience they had working in treatment courts, as well as how many years they had worked in their current position. Lastly, they were asked to identify the title that best identifies their current position.

Treatment courts and COVID-19. Treatment court coordinators were also asked questions that were specific to their experiences with their respective courts and how they functioned during the pandemic. First, respondents were asked to identify the treatment court that they were affiliated with and rank the extent to which COVID-19 impacted the treatment court’s ability to supervise participants. Respondents were then asked if, in their opinion, COVID-19 resulted in a less effective treatment court and if so, how it was less effective. Lastly, respondents were asked if their treatment court adopted new operations and approaches in response to COVID-19 and if so, which ones.

Workplace safety. The current study utilized Cullen et al.’s (1985) 5-item subscale to evaluate perceptions of workplace safety. All the respondents were asked to rank (strongly disagree = 1 to strongly agree = 5) the following statements:

• I work in a dangerous job.

• My job is a lot more dangerous than other types of jobs.

• In my job, a person stands a good chance of getting hurt.

• There is not much chance of getting hurt in my job.

• A lot of people I work with get physically hurt in the line of duty.

Workplace experiences during COVID-19. Lastly, respondents were asked to rank (strongly disagree to strongly agree) statements pertaining to their experiences in the workplace during four time periods of COVID-19: July 2020–December 2020, January 2021–June 2021, July 2021–December 2021, and January 2022–present. The survey statements are summarized as follows:

• My workplace encouraged me to stay home if I was exhibiting any COVID-19 related symptoms.

• I feel my workplace supported me taking precautions for my health related to COVID-19 regarding missing work.

• I do not feel as if my workplace punished me for missing work related to COVID-19 illness experienced by me or members in my home.

• My workplace provided me with flexibility to perform my job duties safely.

• My workplace provided me with reasonable virtual options to perform my job duties.

• My workplace provided me with satisfactory personal protective equipment (PPE) to safely perform my job.

• My workplace allowed for social distancing during workplace duties.

• My workplace provided me with clear guidance on how to address COVID-19 concerns in the workplace.

• My workplace provided me with opportunities to get vaccinated.

• My workplace encouraged vaccinations.

Treatment Court Responses to COVID-19

Best Practice Standard III, Roles and Responsibilities of the Judge, covers many important aspects for judges who preside over their respective treatment courts, including professional training and length of term. Though of concern to the current study are length of court interactions and judicial demeanor while on the bench. For example, the length of court interactions concerns whether the judge spends adequate time with treatment court participants during their status review hearings in front of the court, with research indicating that outcomes are better when the judge spends three to seven minutes with each participant (Carey et al., 2008, 2012). While this best practice standard can be achieved through virtual means, it is not known how online interactions impact participants or affect judicial demeanor. As studies have shown that the quality of interactions with the judge, as perceived by the participants themselves, is one of the most influential factors of success within treatment courts (Farole & Cissner, 2007; Goldkamp et al., 2002, Jones & Kemp, 2013, National Institute of Justice, 2006; Satel, 1998; Saum et al., 2002; Turner et al., 1999), there is no indication of how virtually appearing before a judge impacts participant perceptions of the respect, fairness, attentiveness, and enthusiasm that they receive. While we are not insinuating that judges will be less attentive or caring when interacting with participants on a virtual platform, how the individual participants perceive virtual interactions may be different than if they were meeting in person.

Best Practice Standard IV involves the use of incentives, sanctions, and therapeutic adjustments. As most respondents indicated, they felt that their court was less effective during the pandemic due to the lack of in-person accountability and because of certain sanctions not being available for use, such as brief incarceration within the county jail for repeated violations of court ordered conditions or a step-up in therapeutic adjustments, like ordering placement within inpatient treatment facilities for repeated positive drug screenings. One respondent stated:

This type of response severely diminishes the courts’ use of progressive sanctions for non-compliance and places the court in the position of only using low magnitude sanctioning, which increases the chances of habituation (NADCP, 2018a). While the use of low-level sanctioning is recommended for difficult treatment goals (Harrell & Roman, 2001; Harrell et al., 1999; Hawken & Kleiman, 2009; Kilmer et al., 2012), using high-level sanctioning (e.g., brief incarceration) for the failure of easier goals is severely limited by the restrictions implemented during the pandemic. In addition, because residential treatment facilities were suspended or limited for new admissions and the courts’ drug testing abilities were limited (both discussed in the sections below), identifying participants struggling with sobriety and in need of inpatient treatment was a significant challenge, putting the success of the participants’ treatment at risk. The certainty and immediacy of sanctions and incentives is inherently important to the success of the treatment court model (Harrell & Roman, 2001; Marlowe et al., 2005; Nagin & Pogarsky, 2001). Therefore, the lack of both placed the success of treatment court participants in jeopardy during the pandemic.

Best Practice Standard V and VI deal with substance use disorder treatment and other complementary treatment benefits like mental health and case management services. A treatment court that has access to a continuum of care involving different modalities of treatment is essential to the success of their participants (Carey et al., 2012; Koob et al., 2011; McKee, 2010). Moreover, the longer the participants remain engaged in treatment and if it is done on a consistent basis, the more likely they are to experience positive outcomes (Banks & Gottfredson, 2003; Gottfredson et al., 2007; Gottfredson et al, 2008; Shaffer, 2010). According to the respondents within the current study, these best practice standards were inherently difficult to achieve during the pandemic because treatment and case management services were moved to an online-only modality, and some participants did not have access to devices to connect to online services or they had a complete lack of, or inconsistent, internet service. Although respondents reported that they navigated these issues by providing participants with internet capable devices, the treatment court coordinators struggled in working with participants who did not have consistent internet connectivity, which hampered accountability and the receipt of important services.

Finally, Best Practice Standard VII, which deals with drug and alcohol testing, as discussed above, was clearly jeopardized. All respondents within the current study indicated that their individual courts had struggled with the lack of drug testing because the pandemic limited in-person contact with participants. Best practice standards recommend that drug and alcohol testing be frequent, random, and witnessed by appropriate court staff. The frequency of testing should ensure that any substance use is detected quickly and reliably, with urine testing occurring at least twice a week. As testing frequency increases, so do graduation rates with a decrease in recidivism (Banks & Gottfredson; Griffith et al., 2000; Kinlock et al., 2013). The testing should also be random, and the likelihood of being tested on any day of the week, including weekends and holidays, should be the same since weekend and holidays are high-risk times for alcohol and drug abuse (Kirby et al., 1995; Marlatt & Gordon, 1985). In addition, all testing should be witnessed by someone who is trained to detect any tampering (NADCP, 2018b). Although these circumstances brought on by COVID-19 are out of the courts’ control, by not conducting drug and alcohol tests of participants, the courts were diminishing chances for participants’ success. That is, research indicates that outcomes for participants improve significantly when substance use is detected and sanctions for substance abuse are administered quickly (Hawken & Kleiman, 2009; Kilmer et al., 2012; Marlowe et al., 2005; Marques et al., 2014; Schuler et al., 2014).

Interestingly, while all the courts that responded to the survey stated that they have begun in-person meetings for court, probation appointments, case management, and treatment services, 9 of the courts responded that they are now utilizing online court hearings as an incentive. Essentially, these treatment courts allowed participants to speak to the judge over an online platform if they have been doing well and have had no issues following court orders. Another court treatment coordinator noted their adaptations during the pandemic:

While this allows for more flexibility for the participants (e.g., not having to take off work or find child-care), we still do not know the quality of these online interactions with the judge/court or whether there are any potential negative impacts in doing so. It is possible that the participants are doing well because their treatment courts were meeting with them face-to-face, per best practices. Moving them to an online platform may cause issues, as discussed above. While online interactions have improved the efficiency and effectiveness of many facets of different workplaces, as well as allowed many individuals to receive treatment and services quicker, this may not be the best approach for this facet of the criminal justice system. As such, it is imperative that future research examine whether there is any change to participant outcomes when utilizing court appearances through video.

Workplace Safety During COVID-19

Several months into the COVID-19 pandemic, the BJA (2020) noted concerns with safety in the courtroom, particularly for smaller courtrooms that could not accommodate physical distancing. Courts were also unprepared to acquire PPE, or they could not maintain an adequate amount of PPE to service the needs of court staff and participants, and cases of COVID-19 began to rise over time which limited plans to return to in-person meetings. There was also a great deal of uncertainty surrounding funding stability, with almost a third (30%) of courts reporting that their funding was negatively impacted by the pandemic. Several of the responding courts supplemented the costs for court enhancement, additional supplies, and participant incentives using funds that were previously allocated for conference participation or in-person training. Many courts that received funding through state and county governments also reported that they were uncertain about how their future budgets would be affected compared to courts who were funded through grants (BJA, 2020).

The current study adds to prior literature that has examined COVID-19 and courts by giving additional context about treatment court coordinators’ perceptions of workplace safety during the pandemic. The findings suggest that participants scored an overall mean score of 12.44 for the workplace safety scale. Most of the study participants reported that they were not at risk of getting hurt during their workday (M = 3.25) or being physically injured (M = 1.75), while several indicated that in their job, a person stands a good chance of getting hurt (M = 1.75). However, there was indication among the respondents that their place of employment was dangerous during the pandemic (M = 2.65), especially when compared to other types of jobs (M = 2.64). When putting risk of harm into perspective, it is unknown how participants measured these experiences. Considering that many court participants did not have reliable access to PPE, there were few chances for social distancing, and courts were unsure of how to budget for changes brought forth by the pandemic, it is likely that participants were indeed at risk of contracting COVID-19 while carrying out their duties as treatment court coordinators, despite reporting having felt relatively safe.

In addition, workplace safety was compromised due to extreme levels of stress that people experienced during the pandemic. According to the American Psychological Association (APA) (2021), more than 80% of Americans reported prolonged stress a year into the pandemic, with the most common feelings consisting of anxiety (47%), sadness (44%) and anger (39%). In addition, 67% of adults were overwhelmed by the number of stressors that America was facing at the time that poll was taken, including a tumultuous election season, political unrest, violence, an uncertain economy, and rising death rates from COVID-19. These mental health consequences will need to be addressed as part of a national recovery effort on a continued basis, as the effects of the pandemic will be felt for years to come (APA, 2021).

Treatment court coordinators were asked about their workplace experiences over four time periods during the pandemic. They reported overall positive attitudes throughout all four time periods (Time 1: M = 45.5; Time 2: M = 44.8; Time 3: M = 43.5; and Time 4: M = 45) with little variance between each period. Related to recent experiences with the pandemic, there have been multiple studies released on the perceptions of workplace safety and its effect on happiness with employers, stress in and out of the workplace, and/or motivation to succeed in the workplace (Bakker & Demerouti, 2007; De Carlo et al., 2020; Janson et al., 2021). Employees who have higher attitudes and perceptions of workplace safety are generally more motivated to do well in the workplace and have less stress associated with work during this uncertain time. Based on the exploratory results of this study, the responding treatment court coordinators reported satisfactory experiences with the way their workplaces managed safety and flexibility to address concerns during the pandemic. It would be fair to expect their stress levels were lower and they were productive members of the court system as they were appreciative of the ways the court addressed their needs during a time of stress.

According to Parker et al. (2022), most American workers (60%) do not have jobs that can be done fully remote, much like the coordinators involved in this study. However, workers feel more comfortable with their workplace the more COVID-19 safety measures there are in place. Results from the current study indicated that coordinators were extremely appreciative of the concern their employers expressed for their safety and their willingness to adapt to meet safety needs. We would encourage future exploration of the workplace safety satisfaction levels of all entities in the criminal justice system, as well as the effect on productivity and motivation in these workplaces. It is a fair assumption that allowing for flexibility in the workplace regarding work location, as much as possible, as well as providing safety measures and materials, would allow for a more comfortable workplace no matter the field.