ArticlePDF Available

“I Am Starting to Believe in the Word ‘Justice’”: Lessons from an Ethnographic Study on Community Courts

Authors:
  • Bar Ilan University Law Faculty, Professor of Law; Visiting Professor at UC Berkeley Law School (2021-2022)

Abstract

With the growing awareness of the crisis of mass incarceration and distrust toward the legal system, recent years have seen a rise in interest in specialized, problem-solving, and therapeutic courts designed to reduce incarceration and recidivism rates and enhance public trust in state authorities. Community courts have been operating in numerous jurisdictions worldwide, providing a non-adversarial platform in which repeat low-level offenders are offered a comprehensive rehabilitative and restorative intervention program. Alongside evaluations demonstrating the ability of community courts to reduce incarceration and enhance offenders’ trust, some critics have suggested that community courts jeopardize offenders’ procedural rights and result in over-criminalization of program non-completers. This Article provides a qualitative empirical examination of an Israeli community court model, inspired by the Red Hook Community Justice Center in Brooklyn, New York. Based on over 280 hours of observations of approximately 100 hearings and fourteen staff meetings, the findings provide an inside look at the ways in which Israeli community courts implement a range of evidence-based, democracy-oriented approaches to crime control, such as procedural justice, therapeutic jurisprudence, and community justice, in the context of community courts. The findings also point to a need to pay closer attention to how these courts continue their operation, within a broader adversarial legal framework of criminal justice. The challenges identified in this Article raise questions that are relevant to other community courts in the United States and elsewhere.
1
© The Author(s) [2020]. Published by Oxford University Press on behalf of the American
Society of Comparative Law. All rights reserved. For permissions, please
e-mail: journals.permissions@oup.com.
TALI GAL & HADAR DANCIG-ROSENBERG*
“I Am Starting to Believe in the Word ‘Justice’”: Lessons
from an Ethnographic Study on Community Courts
With the growing awareness of the crisis of mass incarceration
and distrust toward the legal system, recent years have seen a rise in
interest in specialized, problem-solving, and therapeutic courts de-
signed to reduce incarceration and recidivism rates and enhance public
trust in state authorities. Community courts have been operating in
numerous jurisdictions worldwide, providing a non-adversarial plat-
form in which repeat low-level offenders are offered a comprehensive
rehabilitative and restorative intervention program. Alongside evalu-
ations demonstrating the ability of community courts to reduce incar-
ceration and enhance offenders’ trust, some critics have suggested that
community courts jeopardize offenders’ procedural rights and result
in over-criminalization of program non-completers. This Article pro-
vides a qualitative empirical examination of an Israeli community
court model, inspired by the Red Hook Community Justice Center in
Brooklyn, New York. Based on over 280 hours of observations of ap-
proximately 100 hearings and fourteen staff meetings, the findings
provide an inside look at the ways in which Israeli community courts
implement a range of evidence-based, democracy-oriented approaches
to crime control, such as procedural justice, therapeutic jurisprudence,
* Tali Gal is Senior Lecturer and Head of the School of Criminology, University
of Haifa. Hadar Dancig-Rosenberg is Associate Dean for Research and Associate
Professor, Bar-Ilan University Law School; Visiting Professor, U.C. Berkeley Law
School (2017–2018, summer 2020); Visiting Scholar, the Center for the Study of
Law and Society and the Berkeley Institute for Jewish Law and Israel Studies, U.C.
Berkeley (2016–2018). The study was funded by Jewish Distribution Committee (JDC)-
Ashalim (Grant No. 204169). We would like to thank the participants of the Stanford
International Junior Faculty Forum at Stanford Law School 2018, the participants of
the Conference on Empirical Legal Studies at Michigan Law School 2018, and the par-
ticipants of the Association for Israel Studies Conference at U.C. Berkeley Law 2018
for enriching discussions and helpful suggestions on earlier drafts. Special thanks to
Michal Alberstein, Kenneth Bamberger, Malcolm Feeley, Laurence Friedman, Rebecca
Golbert, Manuel Gomez, Rosann Greenspan, Joanna Grossman, Deborah Hensler, Lisa
Kelly, Shmuel Melamed, Jonathan Simon, and Eric Talley. We are also grateful to Gali
Pilovski-Menkes for excellent research coordination and Shefa’a Abu-Jabal, Tamar
Ben-Dror, Yarin Segev, and Talia Yehuda for outstanding research assistance. Last but
not least, we thank Daniella Beinisch and Shlomi Cohen from JDC-Ashalim for sup-
porting the project and providing significant insights and guidance throughout the
research. Both authors contributed equally to this Article.
http://dx.doi/org/10.1093/ajcl/avaa017
Downloaded from https://academic.oup.com/ajcl/advance-article/doi/10.1093/ajcl/avaa017/5889938 by Bar-Ilan University user on 16 August 2020
2
THE AMERICAN JOURNAL OF COMPARATIVE LAW
[Vol. XX
and community justice, in the context of community courts. The find-
ings also point to a need to pay closer attention to how these courts con-
tinue their operation, within a broader adversarial legal framework
of criminal justice. The challenges identified in this Article raise ques-
tions that are relevant to other community courts in the United States
and elsewhere.
IntroductIon
The deepening crisis of mass incarceration in the United States
has highlighted the need for developing non-punitive alternatives
within the criminal justice system.1 Policymakers have to some ex-
tent recognized the need for reform by expanding alternatives and
diversion programs in legislation.2 The proliferation of various puni-
tive and non-punitive justice mechanisms that have been developed in
recent years reflects a new reality, which we termed “multi-door crim-
inal justice.”3 Thus, in recent years there has been a growing interest
in specialized, problem-solving courts designed to address the root
causes of crime and avoid short-term incarceration.4 Drug courts were
the first variant of problem-solving courts,5 offering a range of ad-
diction treatments, housing, mental health, and professional training
services.6 Other problem-solving courts followed, including veterans
1. See Jonathan Simon, Mass Incarceration: From Social Policy to Social
Problem, in the oxford handbook of SentencIng and correctIonS 23 (Joan Petersilia
eds., 2012).
2. See, e.g., Model Penal code: SentencIng §§ 6.02A, 6.02B, 6.13 (Council Draft
No. 4, 2013) (authorizing courts to defer adjudication after charges have been filed and
to refer eligible defendants to specialized courts).
3. See Hadar Dancig-Rosenberg & Tali Gal, Guest Editors’ Introduction: Multi-
Door Criminal Justice, 22 new crIM. l. rev. 347, 351 (2020) (“Inspired by Sander’s
vision of the multi-door courthouse in the noncriminal sphere, we coined the term
‘multi-door criminal justice’ to reflect contemporary criminal law and criminal justice
systems in post-industrial societies. This metaphor of multi-door criminal justice seeks
to evoke the multiplicity of processes, mechanisms, values, and goals that coexist in
modern criminal justice systems worldwide.”). See generally the double special issue
on the subject, 22 new crIM. l. rev., no. 4 (2020) & 23 new crIM. l. rev., no. 1 (2020),
with articles focusing on specific “doors” in contemporary criminal justice system and
on overarching dilemmas and challenges that the multi-door reality presents.
4. See Bruce J. Winick, Therapeutic Jurisprudence and Problem-Solving Courts,
30 fordhaM urb. l.J. 1055 (2003) (describing problem-solving courts in general). In
some American jurisdictions these courts are called collaborative courts. See Donald J.
Farole, Jr. et al., Applying Problem-Solving Principles in Mainstream Courts: Lessons
for State Courts, 26 JuSt. SyS. J. 57, 57–58 (2005).
5. See John S. Goldkamp, The Drug Court Response: Issues and Implications
for Justice Change, 63 alb. l. rev. 923, 962 (2000) (describing the first drug court in
Florida and its operation).
6. See Michael C. Dorf & Charles F. Sabel, Drug Treatment Courts and Emergent
Experimentalist Government, 53 vand. l. rev. 829, 841–43 (2000) (describing the drug
court model and the rehabilitation process under court supervision); u.S. dePt of
JuStIce, defInIng drug courtS: the key coMPonentS 7–10 (reprint 2004) (describing
treatment and support services drug courts provide).
Downloaded from https://academic.oup.com/ajcl/advance-article/doi/10.1093/ajcl/avaa017/5889938 by Bar-Ilan University user on 16 August 2020
3
LESSONS FROM AN ETHNOGRAPHIC STUDY
2020]
courts,7 mental health courts,8 domestic violence courts,9 and prosti-
tution courts.10 Community courts, yet another variant of problem-
solving courts, have been operating in numerous jurisdictions
including in the United States,11 Canada,12 Europe,13 and Australia.14
Community courts provide a non-adversarial process, in which
prosecutors, defense attorneys, local community representatives, the
7. See Mark A. McCormick-Goodhart, Leaving No Veteran Behind: Policies and
Perspectives on Combat Trauma, Veterans Courts, and the Rehabilitative Approach to
Criminal Behavior, 117 Penn St. l. rev. 895, 926 (2013) (describing the treatment
process in veteran treatment courts in the United States); Robert T. Russell, Veterans
Treatment Court: A Proactive Approach, 35 n. eng. J. crIM. & cIv. confIneMent 357,
363–64 (2009) (discussing the veteran treatment court in Buffalo, New York).
8. See, e.g., E. Lea Johnston, Theorizing Mental Health Courts, 89 waSh. u. l.
rev. 519, 580 (2012) (describing and theorizing mental health courts).
9. See, e.g., Rekha Mirchandani, What’s So Special About Specialized Courts?
The State and Social Change in Salt Lake City’s Domestic Violence Court, 39 law &
Socy rev. 379, 418 (2005).
10. See, e.g., Corey S. Shdaimah & Shelly A. Wiechelt, Converging on Empathy:
Perspectives on Baltimore City’s Specialized Prostitution Diversion Program, 22
woMen & crIM. JuSt. 156 (2012) (describing Baltimore City’s Specialized Prostitution
Diversion program); Amy J. Cohen, Trauma and the Welfare State: A Genealogy of
Prostitution Courts in New York City, 95 tex. l. rev. 915, 992 (2017) (highlighting
three stages of prostitution courts in New York City through their long history of dy-
namic reinvention).
11. See Greg Berman & Aubrey Fox, Justice in Red Hook, 26 JuSt. SyS. J. 77
(2005) (describing the community court in Brooklyn, New York); Quintin Johnstone,
The Hartford Community Court: An Experiment That Has Succeeded, 34 conn. l. rev.
123, 156 (2001) (describing the community court in Hartford, Connecticut); weStat,
eaSt of the rIver coMMunIty court (ercc) evaluatIon: fInal rePort (2012), www.
dccourts.gov/sites/default/files/matters-docs/ERCC-Evaluation-Report.pdf (a descrip-
tion and evaluation of the East of the River community court in Washington, D.C.); weSt
huddleSton & douglaS Marlowe, natl drug court InSt., PaIntIng the current PIcture:
a natIonal rePort on drug courtS and other ProbleM-SolvIng court PrograMS In the
unIted StateS (July 2011), www.ndci.org/sites/default/files/nadcp/PCP%20Report%20
FINAL.PDF (an overview of drug courts in the United States).
12. See Emily Slinger & Ronald Roesch, Problem-Solving Courts in Canada:
A Review and a Call for Empirically-Based Evaluation Methods, 33 Intl J.l. &
PSych. 258 (2010) (describing the Downtown Community Court in Vancouver); Paula
Maurutto & Kelly Hannah-Moffat, Aboriginal Knowledges in Specialized Courts:
Emerging Practices in Gladue Courts, 31 can. J.l. & Socy 451 (2016) (describing the
practices of Gladue courts in Canada, that apply “aboriginal knowledge” at sentencing
decisions regarding aboriginal offenders).
13. See Lucy Booth et al., North Liverpool Community Justice Centre: Analysis of
Re-offending Rates and Efficiency of Court Processes (Ministry of Justice, Research Paper
No. 10/12, 2012), https://assets.publishing.service.gov.uk/government/uploads/system/
uploads/attachment_data/file/217393/liverpool-community-centre.pdf (U.K.) (assessing
the impact of the North Liverpool Community Justice Center on re-offending and on
the efficiency of court processes); darrIck JollIffe & davId P. farrIngton, MInIStry of
JuStIce, InItIal evaluatIon of reconvIctIon rateS In coMMunIty JuStIce InItIatIveS (2009),
http://mws-73973.mws3.csx.cam.ac.uk/people/academic_research/david_farrington/
commjmoj.pdf (U.K.) (assessing the initial impact of the Community Justice Initiatives
in North Liverpool and Salford on later measures of offending).
14. See Stuart Ross, Evaluating Neighborhood Justice: Measuring and Attributing
Outcomes for a Community Justice Program, 499 trendS & ISSueS crIMe & crIM. JuSt.
1 (2015) (examining data from the first comprehensive Australian community justice
initiative—the Neighborhood Justice Centre in the City of Yarra, Melbourne—and
suggesting strategies to improve understanding of how programs like this contribute
to improved justice and community outcomes).
Downloaded from https://academic.oup.com/ajcl/advance-article/doi/10.1093/ajcl/avaa017/5889938 by Bar-Ilan University user on 16 August 2020
4
THE AMERICAN JOURNAL OF COMPARATIVE LAW
[Vol. XX
court coordinator, and a social worker collaborate under the leader-
ship of a judge to provide a comprehensive rehabilitative and restora-
tive intervention programs for repeat low-level offenders.15 With an
explicit goal of strengthening local communities, community courts
target mainly crimes that affect citizens’ sense of personal security.16
The emphasis on community involvement, the use of alternative
forms of punishment, and the application of restitutive and restora-
tive sanctions position community courts within a broader movement
promoting the democratization of criminal justice.17 Alongside evalu-
ations demonstrating the ability of community courts to reduce incar-
ceration and enhance offenders’ trust,18 some critics have suggested
that community courts jeopardize offenders’ procedural rights,19 and
have warned against over-enforcement of behaviors that, without the
community court option, would not have been criminalized at all.20
This Article provides an in-depth examination of the Israeli com-
munity court model, outlines its theoretical underpinnings, and exam-
ines its strengths and potential risks. The Israeli community court
model was inspired by the Red Hook Community Justice Center,
a community court that was created in Brooklyn, New York, to ad-
dress the unique social and judicial needs of the local community.21
15. Jeffrey Fagan & Victoria Malkin, Theorizing Community Justice Through
Community Courts, 30 FordhaM Urb. L.J. 897, 954 (2003); Pamela M. Casey &
David B. Rottman, Problem-Solving Courts: Models and Trends, 26 JuSt. SyS. J. 35,
36–38 (2002).
16. See Fagan & Malkin, supra note 15, at 898–99.
17. See generally Symposium, Democratizing Criminal Justice, 111 nw. u. l.
rev. 1367 (2017) (featuring a collection of essays focusing on the idea of making the
criminal justice system more “democratic”). See in particular Joshua Kleinfeld et al.,
White Paper of Democratic Criminal Justice, 111 nw. u. l. rev. 1693, 1706 (2017)
(outlining thirty policy proposals for democratizing criminal justice, including reliance
on community views of justice, training for multiple perspectives, using prosocial pun-
ishment, minimizing imprisonment, and utilizing community supervision).
18. See cynthIa g. lee et al., natl ctr. for State courtS, a coMMunIty court
growS In brooklyn: a coMPrehenSIve evaluatIon of the red hook coMMunIty JuStIce
center—fInal rePort 122 (Nov. 2013), www.courtinnovation.org/sites/default/files/
documents/RH%20Evaluation%20Final%20Report.pdf (showing that offenders re-
ferred to the Red Hood Community Justice Center were significantly less likely to be
incarcerated, compared with a control group of similarly situated offenders prosecuted
in a traditional misdemeanor court); SoMJen M. frazer, ctr. for court InnovatIon, the
IMPact of the coMMunIty court Model on defendant PercePtIonS of faIrneSS: a caSe
Study at the red hook coMMunIty JuStIce center (Sept. 2006), www.courtinnovation.
org/sites/default/files/Procedural_Fairness.pdf (showing an increased sense of trust
among community court offenders at Red Hook Community Justice Center compared
with the traditional courts).
19. See Eric J. Miller, Drugs, Courts, and the New Penology, 20 Stan. l. & Poly
rev. 417, 432–33 (2009); Eric Lane, Due Process and Problem-Solving Courts, 30
fordhaM urb. l.J. 955, 971–73 (2003) (discussing concerns about due process issues
raised by the drug courts and community court practices).
20.
John feInblatt, greg berMan & MIchele SvIrIdoff, ctr. for court InnovatIon,
neIghborhood JuStIce: leSSonS froM the MIdtown coMMunIty court 10 (1998), www.
courtinnovation.org/pdf/neigh_just.pdf (explaining the net-widening effect of commu-
nity courts).
21. See, e.g., Fagan & Malkin, supra note 15.
Downloaded from https://academic.oup.com/ajcl/advance-article/doi/10.1093/ajcl/avaa017/5889938 by Bar-Ilan University user on 16 August 2020
5
LESSONS FROM AN ETHNOGRAPHIC STUDY
2020]
An independent evaluation of the Red Hook community court found
that it significantly reduced the use of incarceration in sentencing,
enhanced residents’ trust in the government, and reduced recidivism
rates among participating defendants.22
This Article is based on an ethnographic study conducted during
2016–2017 on the first two community courts established in Israel.
The study is a part of broader research on the Israeli community court
model. In 2016–2017, the authors conducted a mixed-method forma-
tive study on the piloting stage of the model. The study included, in
addition to the ethnographic observations described here, struc-
tured observations of about 100 community court hearings, based on
an analytical instrument called the Criminal Law Taxonomy (CLT),
developed earlier.23 The CLT consists of seventeen scale-based char-
acteristics describing the procedural elements of the court hearing it-
self, the involvement of the stakeholders in it, the substance of the
court hearings, and their outcomes. The findings of these observa-
tions were presented elsewhere.24 The formative study also involved
in-depth interviews with members of the steering committee that
had developed the model and with the professionals involved in the
daily operation of both courts. These interviews helped the research
team understand the working principles of the court and its goals.
Additionally, seventy-three defendants completed questionnaires re-
lating to how they experienced the legal process at the community
court, their satisfaction with it, the impact it had on their lives and
on their relationships with significant others, and their levels of trust
in the justice system. An analysis of these questionnaires goes beyond
the scope of this Article and will be addressed in another publica-
tion. Finally, to acquire a comparative perspective, we also conducted
structured, CLT-based, as well as ethnographic observations of ap-
proximately 100 arraignment hearings. These were pre-adjudicative
hearings, designed to save court time and encourage the defense and
prosecution to reach an agreement. An analysis of these observations
also goes beyond the scope of the present Article.25
The data used in this Article are derived from non-participant
ethnographic observations, conducted in the two community courts by
22. See lee et al., supra note 18, at 10; douglaS b. Marlowe, carolyn d. hardIn &
carSon l. fox, natl drug court InSt., PaIntIng the current PIcture: a natIonal rePort
on drug courtS and other ProbleM-SolvIng courtS In the unIted StateS 59–60 (2016),
www.ndci.org/wp-content/uploads/2016/05/Painting-the-Current-Picture-2016.pdf.
23. See Hadar Dancig-Rosenberg & Tali Gal, Criminal Law Multitasking, 18
lewIS & clark l. rev. 893 (2015).
24. See Tali Gal & Hadar Dancig-Rosenberg, Characterizing Community Courts,
35 behav. ScI. & l. 523 (2017).
25. The authors have recently embarked on a three-year project of evaluation of
community courts, which will involve a comparison of the recidivism rates among com-
munity court clients and defendants sentenced in mainstream magistrate courts. The
findings of this study will likely contribute to the practice of the Israeli model and its
development.
Downloaded from https://academic.oup.com/ajcl/advance-article/doi/10.1093/ajcl/avaa017/5889938 by Bar-Ilan University user on 16 August 2020
6
THE AMERICAN JOURNAL OF COMPARATIVE LAW
[Vol. XX
the authors and four research assistants, of approximately 100 hear-
ings and fourteen staff meetings. The research team also observed
some of the special events held by the courts around religious holi-
days. Overall, the research team conducted approximately 280 hours
of observations, capturing verbal and non-verbal interactions between
the participants and documenting them in fieldnotes and jottings.26
A thematic analysis of the documented observations demon-
strates the unusual dynamics of community courts. The most prom-
inent themes that emerged were a respectful, strength-based, and
caring attitude toward litigants; a teamwork approach that broke
down the standard adversarial barriers; extended use of practices and
jargon adopted from mental health professions; a holistic perspective
of defendants’ needs; and an emphasis on relationships. Our analysis
identifies the ways in which community courts implement a range of
theories, approaches, and ideologies developed in the therapeutic juris-
prudence scholarship. In addition, the observations enrich our under-
standing of how community courts address some of the challenges
raised by the critics of the model and point to some specific challenges
faced by Israeli community courts. Although the Article focuses on an
Israeli program—one based on a North American model—the issues
it addresses reflect promising practices as well as challenges that are
relevant in many jurisdictions in the United States and elsewhere.
I. coMMunIty courtS aS a varIant of ProbleM-SolvIng courtS
Inspired by the problem-solving and specialized court movement,
community courts were designed to provide a therapeutic, solution-
focused platform to address crimes that negatively affect the safety
and stability of the local community.27 Considering crime from the
community justice perspective, community courts emphasize the joint
interest of civil society and the state in finding solutions to crim-
inal behavior and enhancing community cohesion and wellbeing.28
Community courts have been established in dozens of communities
in the United States,29 Canada,30 and Europe.31 They handle misde-
meanors, such as graffiti, prostitution, harassment, shoplifting, and
drug possession offenses,32 which are considered to have a reciprocal
effect on the locality in which the offender resides or in which the
26. Jottings are a brief written record of events and impressions captured in key
words and phrases. See robert M. eMerSon, rachel I. fretz & lInda l. Shaw, wrItIng
ethnograPhIc fIeldnoteS 1–20, 29–41 (2d ed. 2011) (explaining the principles and tech-
niques of writing fieldnotes and jottings in ethnographic research).
27. See Slinger & Roesch, supra note 12.
28. See, e.g., Fagan & Malkin, supra note 15.
29. See lee et al., supra note 18, at 10; Marlowe, hardIn & fox, supra note 22, at
59–60.
30. See Slinger & Roesch, supra note 12.
31. See lee et al., supra note 18.
32. See Fagan & Malkin, supra note 15, at 910.
Downloaded from https://academic.oup.com/ajcl/advance-article/doi/10.1093/ajcl/avaa017/5889938 by Bar-Ilan University user on 16 August 2020
7
LESSONS FROM AN ETHNOGRAPHIC STUDY
2020]
crime has been committed.33 In addition to addressing the problems
that lead defendants to break the law, community courts also strive to
tackle issues important to community members.34 Local stakeholders,
such as businesses, municipal agencies, and charities, also take part
in the design and implementation of a community court.35 As a result,
court outcomes often involve restitutive sanctions, such as community
work or restitution to victims,36 as well as rehabilitative interventions
that are frequently offered by the local community.37 These outcomes
serve as substitutes for incarceration, but community court clients
who fail to complete the program may be referred back to the main-
stream court for subsequent incarceration.38
As in the problem-solving court model, the legal process in the
community court begins with the defendant’s admission of guilt and
continues with recurring court hearings, in which the intervention
program is agreed upon and monitored.39 The process shuns the ad-
versarial atmosphere that characterizes mainstream criminal courts.
Under the leadership of a community court judge, the prosecution
and the defense collaborate on a regular basis in a shared effort to
see that the defendant completes the program successfully.40 In most
community courts, staff meetings are the central forum where each
scheduled case is discussed (outside the courtroom and in the ab-
sence of the defendant) and examined by the various professionals,
including the prosecutor, the defense attorney, the court coordinator
(or case manager), representatives from the various relevant services,
and the judge. Often, the parties use these meetings to agree on the
desired intervention or discuss the defendants’ relapses as well as
achievements, such as completing the program.41 During court hear-
ings, judges typically depart from the formalistic style that charac-
terizes mainstream courts, and take an active role in the discussion,
expressing praise or disappointment, depending on the defendant’s
33. For a discussion on the interconnections between street-level crime and the
local community, see David R. Karp & Todd R. Clear, Community Justice: A Conceptual
Framework, Criminal Justice 2000: Boundary Changes in Criminal Justice Organi-
zations, 2 crIM. JuSt. 323 (July 2000), https://pdfs.semanticscholar.org/73d0/a984e85ad
5614d5d5c9fd65c93e7426b0e3f.pdf.
34. See Berman & Fox, supra note 11 (describing the involvement of community
representatives in designing the principles, scope, and goals of the community court in
Red Hook, Brooklyn).
35. Id.
36. See Fagan & Malkin, supra note 15.
37. See lee et al., supra note 18.
38. Id. at 9 (discussing the incarceration of community court non-completers).
39. Timothy Casey, When Good Intentions Are Not Enough: Problem-Solving
Courts and the Impending Crisis of Legitimacy, 57 SMu l. rev. 1459, 1481–83 (2004).
40. Victoria Malkin, Community Courts and the Process of Accountability:
Consensus and Conflict at the Red Hook Community Justice Center, 40 aM. crIM.
l. rev. 1573, 1579–81 (2003).
41. Tamar M. Meekins, Risky Business: Criminal Specialty Courts and the Ethical
Obligations of the Zealous Criminal Defender, 12 berkeley J. crIM. l. 75, 91–92 (2007).
Downloaded from https://academic.oup.com/ajcl/advance-article/doi/10.1093/ajcl/avaa017/5889938 by Bar-Ilan University user on 16 August 2020
8
THE AMERICAN JOURNAL OF COMPARATIVE LAW
[Vol. XX
progress.42 Judges often engage in direct dialog with the defendants,
using simple and clear language to understand their situation and
to explain what is expected of them, such as what tests they need to
undergo and what meetings they need to attend.43 Hugs and applause
are routine forms of judicial expression at graduation ceremonies in
community courts.44
Community courts are designed in accordance with the interests
and needs of certain communities; therefore, they differ from each
other in scope, types of offenses they cover, and the interventions they
offer. Some key principles, however, are common to most community
courts. These include a generally informal court setting that allows
for frequent judicial dialog with the defendants in the courtroom and
for procedural and practical flexibility, while maintaining a hierarchy
that ensures compliance;45 a teamwork model that involves a court co-
ordinator as a key participant in decision making; a judicial role char-
acterized by direct, respectful, and supportive dialog with defendants,
as they undertake various rehabilitative programs;46 an emphasis
on a continued relationship with the defendants and in-depth famil-
iarity with their circumstances, to facilitate individual treatment and
custom-tailored solutions; post-sentencing referral to a range of serv-
ices operated by the state, and to community-based organizations, in
accordance with the needs of each defendant (custom-tailored, holistic
rehabilitation plans);47 an emphasis on the ethics of care consider-
ations for achieving therapeutic outcomes, rather than on adversarial
and procedural considerations;48 a court environment that enables
adequate expression of emotions such as empathy, caring, under-
standing, frustration, and disappointment by the judge, court per-
sonnel, and participants;49 constructive use of the structure of the
court and its process to enhance defendants’ compliance and thus
success in their rehabilitation, for example, through regular judicial
42. greg berMan & John feInblatt, ctr. for court InnovatIon, JudgeS and
ProbleM-SolvIng courtS (2002), www.courtinnovation.org/sites/default/files/
JudgesProblemSolvingCourts1.pdf (describing the special role of judges in problem-
solving courts).
43. See id. at 13–15.
44. Id. at 4.
45. See Winick, supra note 4; Malkin, supra note 40.
46. See Shannon Portillo et al., Front-Stage Stars and Backstage Producers:
The Role of Judges in Problem-Solving Courts, 8 vIctIMS & offenderS 1 (2013) (dis-
cussing the front-stage role of the judge in problem-solving courts); Michael S. King,
The Therapeutic Dimension of Judging: The Example of Sentencing, 16 J. Jud. adMIn.
92 (2006) (discussing the special interpersonal skills required for the role of the
problem-solving judge).
47. King, supra note 46, at 105. See also James L. Nolan, Jr., Redefining Criminal
Courts: Problem-Solving and the Meaning of Justice, 40 aM. crIM. l. rev. 1541,
1566 (2003).
48. See Winick, supra note 4; Casey & Rottman, supra note 15.
49. See Elizabeth Richardson, Pauline Spencer & David B. Wexler, The
International Framework for Court Excellence and Therapeutic Jurisprudence: Creating
Excellent Courts and Enhancing Wellbeing, 25 J. Jud. adMIn. 148, 156–58 (2016).
Downloaded from https://academic.oup.com/ajcl/advance-article/doi/10.1093/ajcl/avaa017/5889938 by Bar-Ilan University user on 16 August 2020
9
LESSONS FROM AN ETHNOGRAPHIC STUDY
2020]
monitoring and the active participation of probation officers in each
court hearing;50 and, finally, reliance on local residents’ perceptions of
what the court needs to address and what solutions should be avail-
able to defendants.51
II. crItIqueS of ProbleM-SolvIng courtS
With the increased use of problem-solving courts, and despite some
promising results, some persistent criticism has emerged. Critics at-
tack the potential for violations of defendants’ right to due process, the
risk of net widening, the ineffectiveness in reducing recidivism des-
pite high legal costs, and the increased likelihood of incarceration of
defendants referred to these courts due to failure to complete the pro-
gram. Recently, there has been mounting criticism against the “new
generations” of specialized courts, arguing that there is insufficient
consideration of the risks they present. Although most criticism refers
to other types of problem-solving courts, such as drug courts, some
focus on community courts, as detailed below.
A. Jeopardizing Defendants’ Rights to Due Process
Problem-solving courts have been criticized for overlooking their
clients’ right to due process. Critics have argued that defendants are
pressed to plead guilty, waive their right to appeal, and collaborate with
the specialized court they have been referred to.52 Furthermore, the role
of the defense lawyers departs from the “zealous advocacy” model, and
defense attorneys are expected to collaborate with the other court team
members.53 Consequently, clients of specialized courts are pressed to
engage in an intensive rehabilitative program without any due process
protections.54 When many of them fail (as substance abuse and mental
health problems are difficult to overcome), they face penalties that go
beyond what they could have expected in a mainstream court.55
1. Widening the Net and Increasing Incarceration
Some of the specialized courts have been criticized for targeting
populations that otherwise would not have required criminal inter-
vention. This critique is most salient in the case of community courts,
which explicitly focus on “quality of life” offenses such as littering,
prostitution, noise violations, and indecent public behavior. It has
been argued that in these cases the community court is used to en-
force a tough-on-crime policy under the guise, and using the rhetoric,
50. See Malkin, supra note 40; Berman & Fox, supra note 11.
51. Malkin, supra note 40.
52. See Miller, supra note 19. See also Meekins, supra note 41, at 88.
53. See feInblatt, berMan & SvIrIdoff, supra note 20.
54. See Meekins, supra note 41, at 87–88.
55. See Casey, supra note 39, at 1483–84.
Downloaded from https://academic.oup.com/ajcl/advance-article/doi/10.1093/ajcl/avaa017/5889938 by Bar-Ilan University user on 16 August 2020
10
THE AMERICAN JOURNAL OF COMPARATIVE LAW
[Vol. XX
of community justice.56 Specialized courts have also been criticized
for contributing to an increase in the numbers of filings. By virtue of
the existence of such courts, more defendants are charged, and con-
sequently more are incarcerated.57 Some have also argued that spe-
cialized courts have led to a shift in welfare service provision from
non-criminals as the beneficiaries to defendants. According to this ar-
gument, the broader consequence of specialized courts is that social
services are being provided mainly through penal control.58
2. Lack of Robust Evidence of the Effectiveness of
Specialized Courts
Despite several studies indicating that problem-solving courts,59
and community courts specifically, can reduce recidivism,60 critics have
noted that the methodologies of most studies are not sufficiently ro-
bust.61 Many of the studies evaluating the effectiveness of specialized
56. See feInblatt, berMan & SvIrIdoff, supra note 20.
57. See Morris B. Hoffman, The Drug Court Scandal, 78 n.c. l. rev. 1437 (2000)
(describing the “popcorn effect” according to which the establishment of the Denver
Drug Court has increased the numbers of drug filings substantially, as well as the in-
carceration rates). See also E. Lea Johnston & Conor P. Flynn, Mental Health Courts
and Sentencing Disparities, 62 vIll. l. rev. 685, 764 (2017).
58. See Stacy L. Burns, The Future of Problem-Solving Courts: Inside the Courts
and Beyond, 10 u. Md. l.J. race relIgIon gender & claSS 73, 84 (2010); Anthony C.
Thompson, Courting Disorder: Some Thoughts on Community Courts, 10 waSh. u. J.l.
& Poly 63, 94–95 (2002).
59. See huddleSton & Marlowe, supra note 10 (reviewing studies that show a sig-
nificant reduction in recidivism rates for drug court participants, on average, between
eight and twenty-six percentage points lower than for other justice system responses).
See also Christopher T. Lowenkamp, Edward J. Latessa & Alexander M. Holsinger, Are
Drug Courts Effective? A Meta-Analytic Review, fall J. coMMunIty correctIonS 5 (2005)
(showing that drug courts, in general, reduce recidivism by approximately 9%); Deborah
K. Shaffer et al., Examining the Differential Impact of Drug Court Services by Court
Type: Findings from Ohio, 6 drug ct. rev. 33 (2008) (describing a study conducted in
Ohio in which juvenile drug court participants were found significantly less likely than
matched juvenile probationers to be arrested for a new offense at twenty-eight months
post-entry, 56% versus 75%).
60. See lee et al., supra note 18 (a comprehensive evaluation of the Red Hook
Community Justice Center in Brooklyn showed that the program reduced the two-
year recidivism rate among adult criminal defendants by 10%, in comparison with
similarly situated defendants prosecuted in a traditional misdemeanor court). See also
weStat, supra note 11 (a study conducted in East of the River Community Court in
Washington, D.C., found that recidivism rate among program participants was 42%
lower in comparison with defendants tried in courts in other districts during a one-
year follow-up period); Stuart Ross, Evaluating Neighborhood Justice: Measuring and
Attributing Outcomes for a Community Justice Program, 499 trendS & ISSueS crIMe &
crIM. JuSt. 1 (2015) (describing a study conducted in Melbourne, Australia, which de-
tected a statistically significant reduction in recidivism).
61. See Ross, supra note 60 (discussing the methodological challenges evaluating
outcomes relevant to community courts such as crime rates, community order comple-
tion rates, and recidivism rates, due to the difficulty to attribute outcomes to a single
cause). See also douglaS b. Marlowe, Introductory handbook for dwI court PrograM
evaluatIonS 39–40 (2009), www.dwicourts.org/wp-content/uploads/DWI%20Ct%20
Eval%20Manual%20REVISED-8–10.pdf (describing invalid or biased comparison
groups in drug court and DWI court evaluations); Douglas B. Marlowe, The Verdict on
Drug Courts and Other Problem-Solving Courts, 2 chaP. J. crIM. JuSt. 53, 92 (2011).
Downloaded from https://academic.oup.com/ajcl/advance-article/doi/10.1093/ajcl/avaa017/5889938 by Bar-Ilan University user on 16 August 2020
11
LESSONS FROM AN ETHNOGRAPHIC STUDY
2020]
courts in reducing recidivism lack comparison groups62 or use in-
appropriate ones.63 More recently, the findings of several studies that
have overcome these methodological difficulties and used adequate
comparison groups have shown mixed results.64 Other measurements,
such as cost effectiveness, perceptions of fairness and legitimacy by
program clients, and individual wellbeing have been rarely studied.65
Critics have argued that the proliferation of specialized courts may be
based on good intentions, but it is not evidence-based, given the dearth
of methodologically robust studies measuring their effectiveness.66
3. The New Generation of Specialized Courts and Their
Weaknesses
Recent critics have identified gaps between the ideal and the
practice of “second-generation” problem-solving courts.67 In 1997,
the National Association of Drug Court Professionals (the NADCP)
62. See Marlowe, supra note 61.
63. Id.
64. Although the evidence concerning the effectiveness of drug courts is compel-
ling, the findings regarding other specialized courts are ambiguous. For drug court
studies, see generally David B. Wilson, Ojmarrh Mitchell & Doris L. MacKenzie, A
Systematic Review of Drug Court Effects on Recidivism, 2 J. exPerIMental crIMInology
459, 487 (2006); Lowenkamp, Latessa & Holsinger, supra note 59, at 5; Jeff
latIMer, kelly M. bourgon & Jo-anne chretIen, dePt of JuStIce, a Meta-analytIc
exaMInatIon of drug treatMent courtS: do they reduce recIdIvISM? (2006), https://
pdfs.semanticscholar.org/4e1b/d9482d78c7649bb3c169b79df9716099ac21.pdf (Can.);
deborah k. Shaffer, reconSIderIng drug court effectIveneSS: a Meta-analytIc
revIew 3 (2006); Steve aoS, Marna MIller & ElIzabeth Drake, evIdence-baSed adult
correctIonS PrograMS: what workS and what doeS not (2006).
65. See, e.g., Steven r. belenko, nIcholaS PataPIS & MIchael t. french, econoMIc
benefItS of drug treatMent: a crItIcal revIew of the evIdence for PolIcy MakerS 40–42
(2005) (measuring the cost-effectiveness of drug courts’ treatment and concluding
from a review of research evidence that drug courts generate substantial economic
benefits by reducing crime and post-treatment reductions in health care costs); Gill
McIvor, Therapeutic Jurisprudence and Procedural Justice in Scottish Drug Courts,
9 crIMInology & crIM. JuSt. 29 (2009) (finding participants in Scottish drug courts
generally viewed the interactions in court hearings as fair and contributed to proced-
ural justice perceptions); Donald J. Farole & Amanda B. Cissner, Seeing Eye to Eye?
Participant and Staff Perspectives on Drug Courts, in docuMentIng reSultS: reSearch
on ProbleM-SolvIng JuStIce 51 (Greg Berman et al. eds., 2007) (demonstrating that drug
courts’ clients perceive the judge as fair, caring, and understanding but tough when
necessary); Karen Freeman, Health and Well-Being Outcomes for Drug-Dependent
Offenders on the NSW Drug Court Programme, 22 drug & alcohol rev. 409 (2003)
(measuring the health and wellbeing of drug-dependent participants diverted to the
Sydney New South Wales Drug Court and showing significant and sustained improve-
ments in their health and wellbeing).
66. See Thompson, supra note 58, at 92.
67. Caroline Cooper, Drug Treatment Courts and Their Progeny in the U.S.:
Overcoming Their Winding Trajectory to Make the Concept Work for the Long Term, 8
Intl J. ct. adMIn. 1, 1 (2017) (noting that the implementation of the drug court model
around the United States “has raised as new generations of leaders become involved,
often without the institutional perspective of those who initially instituted the pro-
gram”). See also Thompson, supra note 58 (discussing the progression from drug courts
to a broader notion of community courts and questioning the assumption that the
methodology used in drug courts should be employed in other types of courts).
Downloaded from https://academic.oup.com/ajcl/advance-article/doi/10.1093/ajcl/avaa017/5889938 by Bar-Ilan University user on 16 August 2020
12
THE AMERICAN JOURNAL OF COMPARATIVE LAW
[Vol. XX
published its “Ten Key Components” for the drug court model.68 In
2007, a “Report Card” on drug courts and other problem-solving courts
stated that not all of them adhere to the key components.69 Studies
have demonstrated the importance of certain components, such as fre-
quent judicial monitoring, multidisciplinary teamwork, a system of
rewards and punishments, and careful selection of the optimal target
population for the success of drug courts.70 Consequently, there has
been a call to carefully monitor the implementation of the problem-
solving court model.71 Like in other judicial mechanisms, such as re-
storative justice, there is a need for constant review of the extent to
which programs follow, in practice, the ideal of the original model.72
III. coMMunIty courtS In ISrael
In 2004, an experimental drug court, inspired by the international
drug court movement, began operating in Tel-Aviv. Because of a small
caseload and lack of financial support and evaluation, however, the
project did not expand. In 2014, the first community court was estab-
lished as part of the Be’er-Sheva Magistrates’ Court. A second com-
munity court was established in 2015, within the Ramle Magistrates’
Court. Both cities were selected to serve as sites for the pilot stage of
the project because of their highly heterogeneous populations, with
multiple social problems and willingness to address these problems
through innovative interventions.73 In 2016, the Israeli government
decided to establish community courts in each judicial district in the
68. See natl aSSn drug court ProfS. [nadcP], defInIng drug courtS: the
key coMPonentS (1997). The key components include: (a) integrating alcohol and
other drug treatment services with justice system case processing; (b) using a non-
adversarial approach, with the prosecution and defense counsel promoting public
safety while protecting participants’ due process rights; (c) identifying eligible par-
ticipants early, and placing them promptly in the drug court program; (d) providing
access to a continuum of alcohol, drug, and related treatment and rehabilitation serv-
ices; (e) monitoring abstinence through frequent alcohol and other drug testing; (f)
coordinated strategy for governing drug court responses; to participant compliance;
(g) ongoing judicial interaction with each drug court participant; (h) monitoring and
measuring the achievement of program goals, and gauging effectiveness; (i) ongoing
interdisciplinary education to promote effective drug court planning, implementation,
and operations; and (j) forging partnerships between drug courts, public agencies, and
community-based organizations to generate local support and enhance drug court
effectiveness.
69.
natl drug court InSt., PaIntIng the current PIcture: a natIonal rePort card
on drug courtS and other ProbleM-SolvIng court PrograMS In the unIted StateS 18
(2008), http://faculty.uml.edu/jbyrne/44.203/DrugCourtsReport.pdf.
70. See Marlowe, supra note 61, at 92 (reviewing studies that show the signifi-
cance of each of these components).
71. See Cooper, supra note 67.
72. See Tali Gal, Hadar Dancig-Rosenberg & Guy Enosh, Measuring the
Restorativeness of Restorative Justice: The Case of the Mosaica Jerusalem Program, 2
Intl J. reStoratIve JuSt. 252 (2018) (analyzing a community-based restorative justice
program according to a set of seventeen parameters relating to the process, the parties
in it, the core values it promotes, and the nature of its outcomes).
73. See Gal & Dancig-Rosenberg, supra note 24, at 526–27.
Downloaded from https://academic.oup.com/ajcl/advance-article/doi/10.1093/ajcl/avaa017/5889938 by Bar-Ilan University user on 16 August 2020
13
LESSONS FROM AN ETHNOGRAPHIC STUDY
2020]
country.74 Accordingly, the third community court began operating
within the Tel-Aviv Magistrates’ Court in May 2017, and other com-
munity courts are expected to start operating in Nazareth, Haifa, and
Jerusalem.
The Israeli community court pilot project was initiated by Ashalim,
a department of the Jewish Distribution Committee (the JDC, a phil-
anthropic organization founded during World War I),75 in partnership
with the government. With the leadership of Ashalim, the various
relevant governmental agencies, together with the municipalities of
Be’er-Sheva and Ramle, collaborated to develop an operational model.
The inspiration for the model was the Red Hook Community Justice
Center in Brooklyn, New York, established in 2000 by the Center for
Court Innovation, one of the best known and most researched commu-
nity courts worldwide.76 The Israeli pilot project made some necessary
adaptations to the original model to meet the social, religious, and
structural needs of the Israeli population.
The community courts were established within the local magis-
trates’ courts, which are the trial instance courts for low-level offenses.
In each court, a designated multi-agency team was created. The teams
comprised a community court judge, a coordinator, a community social
worker, a public prosecutor, a police prosecutor,77 a public defender,
and a probation officer. In addition, local steering committees were
established at each of the two municipalities to monitor the court op-
eration and promote collaboration with the local authorities. The pur-
pose of the two community courts was defined as follows: “[T]o address
the root causes of why low-level repeat offenders commit crimes, to
enhance their trust in state authorities, and to strengthen their ties
with local communities.”78 Offering a uniquely intense and long-term
intervention package, the community courts address five areas of re-
habilitation for each participant: health, welfare, employment, support
networks, and adjusting to a law-abiding way of life.79 The community
courts handle approximately 100 cases per year each.
74. governMental decISIon 1840, IncreaSIng the effectIveneSS of PunIShIng
and rehabIlItatIng offenderS In ISrael (Aug. 11, 2016), www.pmo.gov.il/Secretary/
GovDecisions/2016/Pages/dec1840.aspx (Heb).
75. See JewISh dIStrIb. coMM. [JDC], www.jdc.org/about (last visited May 2, 2020).
76. See JulIuS lang, ctr. for court InnovatIon, what IS a coMMunIty court?
(2011), www.courtinnovation.org/sites/default/files/documents/What%20is%20a%20
Community%20Court.pdf (explaining the main principles on which the Red Hook
Community Center operates); lee et al., supra note 18 (demonstrating the Red Hook
Community Center effectiveness in reducing incarceration); Fagan & Malkin, supra
note 15 (describing the Red Hook court’s operation).
77. Generally, the police are authorized to prosecute any charges concerning
crimes that carry a penalty of up to seven years, whereas the state public prosecution
is responsible for the indictment of all other offenses.
78.
danIella beInISch & ShloMI cohen, coMMunIty courtS: PrograM and
oPeratIonal Model 4 (2014) (Heb.) (translated by authors).
79. See Gal & Dancig-Rosenberg, supra note 24, at 527.
Downloaded from https://academic.oup.com/ajcl/advance-article/doi/10.1093/ajcl/avaa017/5889938 by Bar-Ilan University user on 16 August 2020
14
THE AMERICAN JOURNAL OF COMPARATIVE LAW
[Vol. XX
After a case has been identified as eligible by a probation officer,
the judge may refer it to a community court. Eligible defendants are
typically repeat offenders with a likely sentence of short incarceration,
who show evidence of underlying problems considered to be related to
criminality, which the community court may be able to address. These
problems include substance abuse, cognitive and emotional disabil-
ities, non-lethal domestic violence, neighbor disputes, violence, gen-
eral social disconnection, and neglect. Every type of misdemeanor and
felony heard in the magistrates’ courts can generally be referred to a
community court, with the exception of white-collar crimes, organized
crime, hate crimes, sexual assault, firearm crimes, drug trafficking,
national security crimes, and negligent homicide. Generally, Israeli
community courts accept defendants indicted for more serious of-
fenses than do most North American community courts.
Referral to a community court may be ordered only with the consent
of the defense and the prosecutor. After being referred to the community
court, participants begin a structured process that starts with an ini-
tial court hearing, in which the judge explains the nature of the process
and stresses the importance of the participants’ commitment. During the
first phase of stabilization (in which the offender’s physical and mental
health, substance use, and daily needs are addressed), a probation officer
prepares an in-depth evaluation and a treatment plan addressing the
five areas of rehabilitation, which becomes the basis for a plea bargain.
The treatment plan begins after the participant has been stabilized and
pleads guilty. Upon successful completion of the plan, the court adjudi-
cates, typically without an additional sentence. Those who fail to com-
plete the treatment plan are adjudicated using the standard criminal
procedures, occasionally resulting in a jail sentence.80
Iv. an ethnograPhIc PortraIt of the coMMunIty court aMbIance
This Article relies on ethnographic observations to provide a detailed
portrait of the interactions, dynamics, and characteristics of the first two
community courts in Israel. Our goal is to “construct rich, empirically-
based descriptions of the social life and activities” at these settings.81
Ethnography does not seek to represent social “things in them-
selves,” but things “as they are grasped and shaped through the
meaning-conferring response of members.”82 Clifford Geertz, who
developed the concept of “thick description” indicated that ethnog-
raphers should use it to represent the specific meaningful structures
through which members understand their own and others’ actions.83
80. Id.
81.
robert M. eMerSon, conteMPorary fIeld reSearch: PerSPectIveS and
forMulatIonS 27 (2d ed. 2001).
82. Id. at 30.
83. See clIfford geertz, InterPretatIon of cultureS (1973). For a discussion of
the complexities of descriptions and inscribing observed realities, see eMerSon, fretz
& Shaw, supra note 26, at 5–14.
Downloaded from https://academic.oup.com/ajcl/advance-article/doi/10.1093/ajcl/avaa017/5889938 by Bar-Ilan University user on 16 August 2020
15
LESSONS FROM AN ETHNOGRAPHIC STUDY
2020]
Institutional ethnographies “are built from the examination of
work processes and study of how they are coordinated.”84 The insti-
tutional ethnographer’s endeavor is to trace the social dynamics and
relations actors are drawn into through their work and to identify
“native” categories, representations, and “local meanings” that explain
how members of the setting produce, perceive, and interpret the flow
of events that make up their lives.85
Many institutional ethnographers have adopted a rhetoric of
“mapping” to highlight the analytic goal of explication rather than
theory building.86 As Majorie Devault explained, “the analysis is
meant to be ‘usable’ in the way that a map can be used to find one’s
w a y.” 87 As Ronald Niezen and Maria Sapignoli explain:
[E]thnographers set themselves the goal of practicing a kind
of empathy, putting themselves “in the shoes’ of others, under-
standing them as humans, with their own motives, emotions,
areas of competence, fields of actions, and moral dilemmas.
Their central task in institutional ethnography is to situate
this personal empathy in its context, to “unpack” or “trans-
late” the actions and attitudes of human actors within their
professional setting. . . . This empathy involves a process of
critical immersion, learning the way things work from the in-
side, the terminology, procedures, values, and relationships.88
An ethnographic approach usually involves long-term research.
Time in the field is ideally measured in months and even years.89 The
authors of this Article and four research assistants conducted obser-
vations in the Ramle and Be’er-Sheva community courts from March
2016 to June 2017. Research team members attended courtroom ses-
sions and took fieldnotes,90 attempting to capture everything that
was said or done during the hearings. Jottings were used to quickly
84. Marjorie L. Devault, Introduction: What Is Institutional Ethnography?, 53
Soc. ProbS. 294, 294 (2006). For a thorough understanding of institutional ethnog-
raphy and its limitations, focusing on the nature of organizations and their struc-
ture, bureaucracies, hierarchies, ethos, and culture, see generally InSIde organIzatIonS:
anthroPologIStS at work (David N. Gellner & Eric Hirsch eds., 2001). For a discus-
sion of ethnography in the context of international legal institutions, see PalaceS of
hoPe: the anthroPology of global organIzatIonS (Ronald Niezen & Maria Sapignoli
eds., 2017).
85. See MIchael h. agar, the ProfeSSIonal Stranger: an InforMal IntroductIon to
ethnograPhy 194 (1980).
86. See Devault, supra note 84, at 294.
87. Id.
88. Ronald Niezen & Maria Sapignoli, Introduction to PalaceS of hoPe: the
anthroPology of global organIzatIonS, supra note 84, at 1, 7.
89. Id.
90. Fieldnotes are “written accounts that provide the core data for ethnographic
analysis.” See eMerSon, supra note 81, at 131.
Downloaded from https://academic.oup.com/ajcl/advance-article/doi/10.1093/ajcl/avaa017/5889938 by Bar-Ilan University user on 16 August 2020
16
THE AMERICAN JOURNAL OF COMPARATIVE LAW
[Vol. XX
document expressions or actions in the courtroom.91 This technique
helps to establish the authenticity of the text and to “place” the im-
plied reader as a first-hand witness by providing her with a famil-
iarity of the setting and its actors.
The research team also observed some special events held by the
courts during religious holidays and other occasions. Overall, the re-
search team conducted approximately 280 hours of observations in
which data were collected from approximately 100 court hearings, five
special events, and fourteen morning meetings in the two community
courts. The reports of the ethnographic, non-participant observations
were then collected, scanned, coded, and analyzed by the authors and
research team members.92
While conducting the research we followed Paul Bate’s suggested
principles for conducting “good organizational ethnography.” These
include efforts to reflect the polyphony—the multiple voices of the
various members in the setting; to convey the sense of “being there”; to
contextualize the findings in a holistic way; to pay attention to ques-
tions of power, hierarchy, and inequality; to not restrict ourselves to
“front-stage performance” but to pay equal attention to what people
say and do when they perform in the “back stage”; and to look closely
at the use of language as well as nonverbal behavior.93 The analysis
uncovers the judicial process and the various stages that each court
participant underwent, identifying the unique organizational culture
that the two courts have developed.94
A. Setting the Scene: The Daily Operation of the Israel
Community Courts
The legal process in the Israeli community court focuses on in-
dividuals rather than cases. The distinctive ambiance of the commu-
nity court was vividly felt during the observed hearings. Discussions
revolved around the participants, their various needs, aspirations,
and challenges in achieving their rehabilitative goals. Expression
of empathy, praise, and trust in participants’ ability to “make it”
were common.
A unique feature of the Israeli community court model is that
what happens in court is only a small fraction of the effort invested
in each case. During morning meetings, team members exchanged
91. Jottings are “brief written record of events and impressions captured in key
words and phrases.” See eMerSon, fretz & Shaw, supra note 26, at 29.
92. On the process of coding, memoing, and selecting core themes from ethno-
graphic fieldnotes, see id. at 171–97.
93. See Paul Bate, “Whatever Happened to Organizational Anthropology?”
A Review of the Field of Organizational Ethnography and Anthropological Studies, 50
huM. rel. 1147, 1163–71 (1997).
94. See Jessica A. Roth, The Culture of Misdemeanor Courts, 46 hofStra l. rev.
215, 252 (2017) (describing the organizational culture of three courts and discussing
the challenges in reforming organizational culture).
Downloaded from https://academic.oup.com/ajcl/advance-article/doi/10.1093/ajcl/avaa017/5889938 by Bar-Ilan University user on 16 August 2020
17
LESSONS FROM AN ETHNOGRAPHIC STUDY
2020]
information about each participant, discussed various rehabilitative
alternatives, and decided whether some participants should leave the
program. Although in most cases team members reached an agree-
ment during the morning meetings, on occasion no consensus was
reached and the team decided to raise the issue during the hearing.
Even in these disputed cases, team members knew in advance the
positions of their colleagues. In some cases, when the team identified
an issue that was relevant beyond the case at hand, they brought it
before the broader forum of the national steering committee.
The mutual trust, respect, and familiarity between team mem-
bers were evident throughout the court observations. The positions
of defense attorneys, prosecutors, and probation officers were usually
synchronized, if not unified, during court hearings.
In addition to the morning meetings, other activities took place
outside the courtroom as part of the program. Participants took part
in scheduled out-of-court appointments, as stipulated in their indi-
vidual plans, such as meetings with their probation officer, thera-
peutic sessions, and other engagements of an educational, vocational,
or medical character. Participants met regularly with volunteers who
visited their homes, met their families, and escorted them to their pro-
gram activities. Many participants were referred to substance-abuse
rehabilitation centers, some for extended periods of time. The process
that program participants underwent exceeded the specific legal re-
sponse to the offense they had committed.
In addition to the intense work with each participant, the courts
held special events in the local community, in which court personnel,
program participants, their family members, and community mem-
bers took part. These events, which were typically held around the
holidays of the various religions, likely contributed to the special re-
lationships that developed between program participants, the judges,
and the court personnel.
In the following subsections we describe the unique atmosphere
and culture characterizing the two community courts examined. The
findings are clustered into five themes. Each theme is linked with re-
lated theories and approaches derived from the therapeutic jurispru-
dence scholarship and is followed by examples and excerpts. Despite
obvious differences between the two sites, owing to the different per-
sonalities of the professional team members at each court, we found
that the two sites share a similar organizational culture. Therefore,
the following description applies to both courts.
B. Procedural Justice in Action: Respectful Dialog and Giving
Participants a Voice
According to procedural justice theory, defendants are more likely
to accept their sentence if they experience the legal process as just; in
other words, if they understand it, can voice their opinions, are treated
Downloaded from https://academic.oup.com/ajcl/advance-article/doi/10.1093/ajcl/avaa017/5889938 by Bar-Ilan University user on 16 August 2020
18
THE AMERICAN JOURNAL OF COMPARATIVE LAW
[Vol. XX
with respect, and the decision is based on a neutral assessment of the
arguments.95 Defendants are then more likely to obey the law in the
future.96
Our ethnographic observations revealed that almost all the pro-
cedural justice ingredients were implemented almost all of the time.
Throughout the court hearings, participants were treated with utmost
respect. All professionals made a point of approaching participants
directly, using their first name, and making eye contact. Typically,
team members used simple terms, avoided legal jargon, and sought to
engage participants in the discussion:
[Judge]: “How are you today, [first name]? Do you have good
things to tell me? You know that every time we meet I want
to hear more good things.”
[Judge]: “You have been sitting for several hours in the court-
room, right? I saw you. I commend you for being here. But
I also have to hear that you take responsibility.”
Although, occasionally, team members discussed issues “over the de-
fendants’ heads,” they seemed to be aware that this was to be avoided,
and would stop such conversations and turn directly to the defendant,
including them in the discussion.
Procedural justice was also apparent when court personnel in-
vested time and effort to ensure that participants understood exactly
what the process involved, its various stages, the roles of the different
professionals, and what was expected of them at each stage:
[Probation Officer]: “I wish you best of luck. Your probation
officer is Alex . . . . It’s very important that you arrive on time
to all the appointments, and if something comes up you have
to call.”
[Judge]: “Next time we meet is [date]. It will be a Tuesday, not
a Monday as always. I’m telling you this so that you don’t get
mixed up.”
Another manifestation of procedural justice were the opportunities
that court participants received to express themselves freely. At many
hearings, participants were able to convey their views, wishes, feel-
ings, and experiences using their authentic voice, without any inter-
vention on the part of their defense attorney or other professionals.
95. See toM r. tyler & yuen J. huo, truSt In the law: encouragIng PublIc
cooPeratIon wIth the PolIce and courtS (2002) (perceptions of procedural justice play
an important role in shaping people’s willingness to consent and cooperate with the
police and the courts); Tom R. Tyler, Legitimacy and Criminal Justice: The Benefits of
Self-Regulation, 7 ohIo St. J. crIM. l. 307 (2009) (discussing a process-based model of
regulation designed to improve the ability of the police and the courts to gain imme-
diate and long-term compliance with decisions made by legal authorities).
96. See toM r. tyler, why PeoPle obey the law (1990) (arguing that people
comply with the law not because they fear punishment but because of their perception
of legal authorities’ legitimacy and fairness).
Downloaded from https://academic.oup.com/ajcl/advance-article/doi/10.1093/ajcl/avaa017/5889938 by Bar-Ilan University user on 16 August 2020
19
LESSONS FROM AN ETHNOGRAPHIC STUDY
2020]
The court teams were open to different styles and forms of communi-
cation, and encouraged participants to express themselves freely, as
long as they showed respect for the forum. Thus, participants cried,
laughed, hugged their supporters, read letters they had prepared in
advance for the hearing, and even sang in court.
C. Problem Solving Through Teamwork
The Israeli community court model is inspired by the problem-
solving approach that characterizes many such courts in the United
States and elsewhere. At most hearings, team members departed from
their traditional adversarial roles and adopted a collaborative, coord-
inated mode of operation, with the shared goal of identifying the root
causes of the criminal behavior and eliminating them.
During the vast majority of court hearings and morning meetings,
the collaboration between the various professional team members was
evident. Team members ascribed specific roles to each professional.
Occasionally, roles were divided along the line of “bad cop, good cop”—
the latter typically played by the judge and the former by the pros-
ecutor. In contrast to traditional adversarial trials, it was obvious
that the prosecutors, defense attorneys, probation officers, and social
workers worked in full coordination with one another, even when they
spoke in different voices:
[Probation officer at a morning meeting]: “Maybe we should
ask him to write a letter” . . . [approaching the judge]: “Maybe
you should give him a task?” . . . [Prosecutor]: “I’ll warn him
at the hearing.”
Morning team meetings, which are closed to the public and the
participants, were the stage where roles were assigned and sometimes
rehearsed, so that one team member would compliment participants
for their efforts while another would warn them that this was their last
chance to remain in the program. To some extent, court hearings were
carried out as rituals, which the court personnel used as a vehicle for
integrating the authority of the court within the rehabilitative process
of the participants. The team meetings often involved disputes and
disagreements about the desired strategies involving participants. In
most cases, a consensual decision was reached, and the deliberation in
the open courtroom exposed wall-to-wall agreement. In several cases,
however, when the professionals did not reach a decision, they pre-
sented their arguments in court and the judge made a decision, based
on the arguments and on the participants’ input.
Sociologist Erving Goffman’s influential metaphor of frontstage
and backstage behavior identified the disparity between people’s be-
havior in formal and informal (intimate) interactions.97 Goffman’s
97. See ervIng goffMan, the PreSentatIon of Self In everyday lIfe (1959).
Downloaded from https://academic.oup.com/ajcl/advance-article/doi/10.1093/ajcl/avaa017/5889938 by Bar-Ilan University user on 16 August 2020
20
THE AMERICAN JOURNAL OF COMPARATIVE LAW
[Vol. XX
theory is helpful in describing court dynamics as well. For example, the
interactions between defense attorneys and prosecutors are different
during court hearings than they are outside the court, negotiating in-
formally toward an agreement. In community courts, backstage ac-
tivities of the court personnel are crucial, because team members can
jointly and openly review the progress of the participants and discuss
possible strategies and actions.98 The morning meetings in the current
study were a crucial part of this orchestrated effort.
The court teams also continued to work jointly to strengthen the
model and develop its resources. Every few months the two teams
met with the project managers and the national steering committee
to discuss issues that needed further deliberation. Each court had
a local steering committee stationed in the Be’er-Sheva and Ramle
municipalities, where issues specific to each locality were discussed.
There were also several joint training sessions for the two teams to
strengthen the professionals’ understanding of the model and their
roles in it, and to build trust and collaboration between them.
Among the team members, two stood out as leaders. The key per-
manent actor during court hearings was the judge. The two judges
in our study facilitated the discussions, granted speaking time to the
various stakeholders, and concluded each hearing with a decision. By
contrast, during morning meetings and other out-of-court activities
the court coordinator (or case manager, as they are called in special-
ized courts elsewhere) appeared to play a crucial role. Our observa-
tions revealed that court coordinators fulfill two functions. They play
a paternal, supportive role for the participants, who frequently turn
to them with any problems. In court, the coordinators greet every par-
ticipant with a handshake, a hug, or a nod. They often sit next to the
defendants and discuss their personal matters. Participants often
have the coordinator’s personal phone number and they call them
when they are in need of immediate help. The coordinators also act as
facilitators in team collaboration as a whole, ensuring that every rele-
vant piece of information is exchanged and that no participant falls
between the cracks. The role of the court coordinator is unique to the
community court model, and their dominant involvement in decision
making (especially at morning meetings) is perhaps the strongest
manifestation of the non-adversarial nature of this model:
[A participant]: “I want to say a big thank-you to [the coord-
inator]. Something happened this week that moved me very
much . . . . Something bad happened at work. Everything
collapsed. My family has never stood up for me as [the
98. See Joann MIller & donald c. JohnSon, ProbleM SolvIng courtS: a MeaSure of
JuStIce 175–76 (2009); Portillo et al., supra note 46 (portraying the morning meetings
as a platform for rehearsing for the “performance” in the court hearing).
Downloaded from https://academic.oup.com/ajcl/advance-article/doi/10.1093/ajcl/avaa017/5889938 by Bar-Ilan University user on 16 August 2020
21
LESSONS FROM AN ETHNOGRAPHIC STUDY
2020]
coordinator] did. He fought for me as a father. If he hadn’t
been there, it would’ve been bad. . . .”
In addition to the non-adversarial and collaborative modus ope-
randi of the court, another of its features representing a problem-solving
approach was the teams’ holistic perspective of each participant. At
court hearings and morning meetings, every participant was treated
holistically, with an effort to address a range of needs and solve a var-
iety of problems. Each offender’s underlying problems were identified,
and a comprehensive intervention program was tailor-made, involving
such areas as employment, accommodation, nutrition, physical and
mental health, financial and legal status, family ties, and more. The
connections between a range of neglected needs and the offending be-
havior were a recurring theme throughout the hearings, reflecting an
understanding that only such a holistic approach can support the par-
ticipants in making a genuine change in their lives.
[Judge]: “You deserve to succeed . . . . We heard that you would
like to play music, and we’ll try to help you in this and in
employment as well. Good luck . . . . If you empower yourself,
others will benefit as well.”
[Observer’s report]: A participant tells the court that he
doesn’t see well because he needs eyeglasses. The court co-
ordinator promises to help him out . . . .” [Observer’s report of
the following hearing]: “The participant arrives wearing new
glasses, which the coordinator had paid from the petty cash
of the court.”
D. A Therapeutic Court
According to therapeutic jurisprudence scholarship, every contact
that individuals have with the legal system is a “therapeutic oppor-
tunity.”99 Because such experiences can have powerful, both positive
and negative, implications for the personal wellbeing of defendants,100
therapeutic jurisprudence promotes procedures, rules, and practices
that have a therapeutic effect, and seeks to minimize or reform legal
elements that have anti-therapeutic effects.101 At the practical level,
therapeutic jurisprudence encourages expressions of empathy and
enthusiasm toward defendants who make progress, and expressions
99. See Winick, supra note 4, at 1081 (“The individual’s arrest and need to face
criminal charges can present the pressures needed to create such a teachable moment
or therapeutic opportunity in which the individual is ready to contemplate change,
accept responsibility for wrongdoing, and consider making a genuine commitment to
rehabilitation.”).
100.
davId b. wexler & bruce J. wInIck, law In theraPeutIc key: develoPMentS In
theraPeutIc JurISPrudence (1996).
101. Id.
Downloaded from https://academic.oup.com/ajcl/advance-article/doi/10.1093/ajcl/avaa017/5889938 by Bar-Ilan University user on 16 August 2020
22
THE AMERICAN JOURNAL OF COMPARATIVE LAW
[Vol. XX
of concern or disappointment when they depart from the treatment
plan.102
One necessary element in a therapeutic court is an openness to
informal discourse. The community courts have developed their own
terminology and style, which stand apart from the formal, legalistic
culture of mainstream courts. Defendants are “participants,” and the
first hearing is a “greeting hearing.” Humor is often used in the court:
[Judge]: “I can see that you have gained two grams!”
[Judge]: “It’s so nice to hear [about your new job]! You make
me want to go out and get a job!”
In some cases, the flexibility and informality led to creative solu-
tions that would not have been possible in a mainstream court, such
as referring a participant to substance-abuse tests in another city,
outside the court jurisdiction, where he resides temporarily. Most im-
portantly, we were able to identify a departure from the traditional
roles that each professional typically plays in adversarial trials.
Occasionally, we observed the parties’ positions moving closer to each
other, and even crossing over, with the defense attorney expressing a
need to sanction participants or a prosecutor praising them:
[Defense attorney]: “She hasn’t been in contact with me ei-
ther. I support some kind of sanction, but not too severe.”
[Prosecutor]: “Do you like to play music? You should pursue
this and indulge yourself for once, don’t just give to others all
the time.”
On occasion, the judges disclosed aspects of their personal lives, used
their experiences as examples, or expressed their personal views. Such
gestures are unheard of in mainstream courts:
[Judge, reacting to a participant’s report that she found a
new job, which requires her to walk a long distance in the
absence of public transportation]: “I love walking . . . . Once,
when I lived in the United States, I walked along the highway.
I had no idea that this was dangerous . . . . Someone stopped
and gave me a ride. My son was in shock.”
As in other therapeutic courts, the professionals in the commu-
nity courts made frequent use of therapeutic practices and tech-
niques. One such common practice was the use of stick and carrot:
the court set clear goals and tasks for participants, monitored their
implementation, and responded accordingly. Participants who cooper-
ated and completed their tasks were greeted with encouragement,
praise, and such prizes as advancing to the next stage. Participants
who failed were reproached and at times censured; for example, they
102. See Casey & Rottman, supra note 15.
Downloaded from https://academic.oup.com/ajcl/advance-article/doi/10.1093/ajcl/avaa017/5889938 by Bar-Ilan University user on 16 August 2020
23
LESSONS FROM AN ETHNOGRAPHIC STUDY
2020]
were required to write a letter to the judge or were summoned for
additional court hearings. The judge rebuked a participant who did
not show for an appointment and required him to prepare a letter ex-
plaining the consequences of his behavior:
[Judge]: “Next hearing, you will come and tell me about the
steps you took to find a job!”
Closely related to therapeutic jurisprudence is positive criminology,103
a research agenda that combines approaches, studies, and practices fo-
cusing on positive experiences to promote defendants’ rehabilitation and
desistance.104 Our observations identified regular use of strength-based
discourse directed at participants. The judges and other team members
frequently praised participants for their efforts, even when there was
room for improvement. They pointed out participants’ resources and
strengths, such as specific traits, a talent, or family ties, and encouraged
them to utilize these resources for their rehabilitation. In many cases,
praise was expressed generally, but occasionally judges provided positive
feedback that was aimed at certain actions or traits of the participants,
consistent with the recommendations of various treatment methods:
[Defense attorney, speaking to a participant’s husband in
court]: “I, as a woman, admire her. She’s an amazing woman.
Give her the support she deserves!”
[Judge, to a participant who struggles to find a job]: “You have
a wonderful thing at your disposal, you’re a licensed driver!”
[Probation officer at graduation ceremony]: “We applaud [the
participant] on every measure . . . . He arrived to meetings, the
tests are clean . . . . Participated in a career-building workshop,
learned to prepare a resume, completed a basic English class, did
homework . . . . Took part in the ‘good deed’ day. I personally saw
that he did not rest for a moment.” [Everybody applauds. The
judge steps off the bench, shakes his hands, gives him a diploma,
compliments him, and returns to bench. The participant smiles.]
E. Court as Family: Ethics of Care and Participants’ Sense of
Belonging
In feminist scholarship, the term “ethics of care” refers to an
approach that emphasizes problem solving in a broader framework
103. See generally Natti Ronel & Ety Elisha, A Different Perspective: Introducing
Positive Criminology, 55 Intl J. offender theraPy & coMP. crIMInology 305, 325 (2011).
104. See generally PoSItIve crIMInology (Natti Ronell & Dana Segev eds., 2015).
See also Tali Gal & David B. Wexler, Synergizing Therapeutic Jurisprudence and
Positive Criminology, in PoSItIve crIMInology, supra, at 85 (discussing the links be-
tween therapeutic jurisprudence and positive criminology and what each framework
contributes to the other).
Downloaded from https://academic.oup.com/ajcl/advance-article/doi/10.1093/ajcl/avaa017/5889938 by Bar-Ilan University user on 16 August 2020
24
THE AMERICAN JOURNAL OF COMPARATIVE LAW
[Vol. XX
of relationships and interdependence.105 In the legal sphere, ethics
of care is related to a holistic approach that stresses needs, rela-
tionships, and interpersonal ties, in contrast to the ethics of justice,
which emphasizes strictly rights-based considerations.106 In the
community courts, the court team often used practices and expres-
sions that reflect an ethic of care, such as a shared expression of
commitment toward participants and the use of “concerns” rather
than censure. Team members continually sought out interventions
that would address the full range of emotional, family, and so-
cial needs of the participants, with an emphasis on their relation-
ships with their loved ones. In time, professionals and participants
grew closer, and it was possible to detect the mutual commitment
between them:
[Prosecutor]: “We want you to complete the program the best
you can. We want you and your partner to come out empowered.
[Prosecutor]: “What will you do so that it doesn’t happen again?
. . . You can do it, we are with you . . . . Don’t give us bad tests
anymore! You have many more years to live, you need to live.”
[Court coordinator, at a morning meeting]: “This is my most
emotional failure. I’ve been depressed for two weeks.”
[Judge]: “I want to hug you, you are such a wonderful man!”
Closely related to an ethic of care is defiance theory, according to
which offenders are more likely to desist from crime when they con-
sider the sentencing agency to be legitimate, feel a sense of belonging
to normative society, and are ashamed of their criminal behavior.107
The link between an ethic of care implemented by the community
court personnel and defiance theory is that community court partici-
pants appreciate the caring attitude of the court and respond by grad-
ually becoming more committed to fulfilling the expectations placed
upon them by the team members. Our observations found that the
vast majority of participants experienced the court as a benevolent
entity and felt a sense of belonging in the program, at times even pride
for being a part of it. The court hearings did not focus on the offenses
that participants committed; such discussions took place outside the
courtroom, typically with the probation officers who worked with par-
ticipants on accountability. Our observations, therefore, could not
105. See generally carol gIllIgan, In a dIfferent voIce: PSychologIcal theory and
woMenS develoPMent (1982).
106. See, e.g., Hadar Dancig-Rosenberg & Dana Pugach, Pain, Love and Voice:
The Place of Domestic Violence Victims in Sentencing, 18 MIch. J. gender & l. 423,
458–59 (2012).
107. See Lawrence W. Sherman, Defiance, Deterrence, and Irrelevance: A Theory of
the Criminal Sanction, 30 J. reS. crIMe & delInquency 445, 473 (1993).
Downloaded from https://academic.oup.com/ajcl/advance-article/doi/10.1093/ajcl/avaa017/5889938 by Bar-Ilan University user on 16 August 2020
25
LESSONS FROM AN ETHNOGRAPHIC STUDY
2020]
indicate the level of shame that participants felt for committing the
offenses that brought them to the community court. We do know, how-
ever, that participants had strong positive reactions to the expressions
of care by the professionals, and they exhibited feelings of trust and
hope. They also often expressed gratitude toward the court personnel
and spoke about how grateful they were for receiving this opportunity
to change their ways and rebuild a normative life.
Some of the optimistic statements made by participants had to do
with their regained control over their lives; others included expres-
sions of gratitude and appreciation for the staff. These were in stark
contrast with what defendants typically feel and express in main-
stream criminal courts, where an ethic of justice, rather than of care,
is prominent.108 At least some of the participants grasped that being
part of a caring program enabled them to re-evaluate their behavior
and understand how they are seen by normative society:
[Participant]: “I’m starting to believe in this word ‘justice.’”
[Participant]: “Until now, I always felt helpless because no one
wanted to listen. This is the first time that I feel someone is
interested in what I’m going through and what bothers me.”
[Participant]: “The community court changed my approach
to life. You have transformed my personal experience as a
grandfather—although I recently had my eighth grandson,
I feel like this is my first!”
[Participant]: “From the day I joined the program I’ve been
smiling.”
F. Promoting Community Justice Through a Communitarian
Approach to Justice
The community court model is also inspired by the community
justice movement, which sought to enhance public trust in the author-
ities and build institutional legitimacy by strengthening community
ties.109 The Israeli community courts involved the local communities
in which they were situated by establishing local steering commit-
tees. Residents and students from local colleges volunteered in the
108. The terms “ethics of justice” versus “ethics of care” are used here figuratively.
These terms were coined by psychologist Carol Gilligan in her well-known book In
A Different Voice (see supra note 105) to characterize the different manner in which
boys and girls observe complex moral situations and react to them. According to
Gilligan, whose research is based on the developmental theory of psychoanalyst Nancy
Chodorow, men and women’s moral judgment leans on different worldviews regarding
the relationship between the self and the other. Whereas female experience is largely
based on relationships and caring (“ethics of care”), male experience is based on bound-
aries, principles, and excessive distancing (“ethics of justice”).
109. See Karp & Clear, supra note 33; Berman & Fox, supra note 11.
Downloaded from https://academic.oup.com/ajcl/advance-article/doi/10.1093/ajcl/avaa017/5889938 by Bar-Ilan University user on 16 August 2020
26
THE AMERICAN JOURNAL OF COMPARATIVE LAW
[Vol. XX
community courts and assisted participants throughout the process.
In this sense, it seems that the community court model promotes
“popular participation within our lawyer-run system.110 Local busi-
nesses were approached and encouraged to employ participants. The
special events that each court organized around holidays engendered
joint activities by residents, participants, and court personnel. Almost
all participants were required, as part of their sentence, to engage in
community work, so that participants and the community contributed
to each other.
Outside the courtroom, intense work was being conducted as part
of the program by the court team and others. The activities included
morning meetings (described above), regular contact between the
court coordinator and the participants, regular contact between par-
ticipants and volunteers, meetings between the court team and the
local community steering committee, social forums (a soccer team con-
sisting of Ramle community court participants, defense attorneys, and
prosecutors, and a music group of Be’er-Sheva community court parti-
cipants), special projects initiated by the local communities, in which
community court participants were actively involved, a mentoring
project by students of Ben-Gurion University in Be’er-Sheva for parti-
cipants’ children, and a mentoring project for current participants by
community court graduates.
The community courts also held special events in which partici-
pants served as both contributors and beneficiaries, with the active
involvement of their families, the court teams, and the judges. Such
events included, for example, a “good deeds” day, creating a commu-
nity garden, New Year activities with children, Hanukah and Passover
ceremonies, attending youth plays at the local theatre, and a gradu-
ation ceremony for participants with the attendance of the mayor.
As noted, the research team observed some of the special events, in
addition to attending court hearings and team meetings. The special
events reflected the community courts’ underlying perception that the
community is a powerful stakeholder, which can contribute to the par-
ticipants’ rehabilitation, and an important target for participants’ res-
titutive and restorative actions.
The courts’ holistic approach not only represents community
justice. The perception of the participants as members of a network of
family and community relationships reflects a communitarian ideology,
which considers crime in a broad social perspective. Individuals, ac-
cording to a communitarian approach, are always interdependent
110. See Stephanos Bibas, Restoring Democratic Moral Judgment Within
Bureaucratic Criminal Justice, 111 nw. u. l. rev. 1677, 1692 (2017) (proposing to in-
corporate popular participation within the current criminal justice system). See also
Laura L. Appleman, Local Democracy, Community Adjudication, and Criminal Justice,
111 nw. u. l. rev. 1413, 1428 (2017) (describing the participation of the community as
a type of democratic localism, which is essential for the proper functioning of the crim-
inal justice system).
Downloaded from https://academic.oup.com/ajcl/advance-article/doi/10.1093/ajcl/avaa017/5889938 by Bar-Ilan University user on 16 August 2020
27
LESSONS FROM AN ETHNOGRAPHIC STUDY
2020]
with others. Considering a person in isolation from his or her familial,
social, or community ties (healthy or pathologic)—distorts the reality
and results in unjust and unrealistic outcomes.111 Such a communi-
tarian perception was apparent, at times, during court hearings, when
individual participants were considered in conjunction with their
ongoing, and often impaired relationships, for example, with family
members and employers. The involvement of volunteers, who guided
participants during court hearings and supported them throughout
the process outside the court building, also attested to the important
role of the community and of community members in the rehabili-
tation process. Some of the volunteers played an active role at court
hearings:
[Volunteer]: “[The participant] has great potential to succeed
and he’s in a completely different place than he was when we
met. The problem is that he keeps running away from himself
. . . . I’ve been here for three hours, and I’m willing to continue
the process with him . . . but he cut himself off.” [Approaching
the participant]: “I’m not giving up on you.”
[Participant]: “My father is here and I want to thank him so
that everyone can hear. He helps me and it’s not obvious. He
wants to say something too, if possible.”
[Judge]: “Good for you [the participant] for showing appre-
ciation of your father like this.” [Turning to the father]: “Of
course you can speak. It’s very important that you’re here,
and it’s great that you’re taking part in the process. Please,
go head, we’re listening.” [The father speaks].
v. dIScuSSIon: what ethnograPhIc obServatIonS can offer In
reSPonSe to crItIqueS
An analysis of our ethnographic observations shows a unique
program in which two criminal magistrates’ courts were reorganized
as community courts. In contrast to the adversarial, individualistic,
and formalistic atmosphere that characterizes mainstream criminal
courts, Israeli community courts demonstrated a therapeutic, collab-
orative, community-based social justice approach.
The lengthy and detailed observations that the research team car-
ried out in the community courts provided us with an opportunity
to evaluate how the Israeli model addresses existing critiques and
challenges. However, before considering the various critiques, it is im-
portant to note that the Israeli community court model differs from its
111. Shlomo Avineri & Avner De-Shalit, Introduction to coMMunItarIanISM and
IndIvIdualISM 1, 2 (Shlomo Avineri & Avner De-Shalit eds., 1992) (explaining that, ac-
cording to communitarian theory, people’s behaviors can be understood only in their
social, cultural, and historical context).
Downloaded from https://academic.oup.com/ajcl/advance-article/doi/10.1093/ajcl/avaa017/5889938 by Bar-Ilan University user on 16 August 2020
28
THE AMERICAN JOURNAL OF COMPARATIVE LAW
[Vol. XX
North American source in several ways. First, the Israeli community
courts deal with crimes that are generally more serious than those
brought before community courts elsewhere. Second, the intervention
program offered to participants is typically more intense, lasts longer,
and includes more ingredients than many intervention programs
offered by North American and European community and problem-
solving courts. Another unique feature is the centralized character of
the model, which was developed by a national steering committee and
then implemented in two different courts (by now, two more courts
have begun operating according to the same model, and two others are
expected to operate in the coming year). Finally, the model was devel-
oped with a strong emphasis on defendants’ rights, and the Vice State
Public Defender was a key member of the model steering committee.
With these differences in mind, we now consider the various cri-
tiques that were presented earlier against community courts and dis-
cuss how the Israeli model addresses them. We will then reflect on
other critiques that arise from the Israeli model itself.
A. Addressing the First Critique: Potential Violations of
Defendants Rights
The community court model requires representatives of various
agencies to collaborate on a regular basis in order to support and
monitor the participants’ progress in the program. This collaboration
is atypical in the adversarial criminal context and raises several
challenges. The most obvious tension lies in the expectation that de-
fense attorneys and prosecutors seek to reach consensual decisions
without jeopardizing defendants’ rights. What happens when partici-
pants’ rights to due process are at risk? Indeed, with the collaborative
spirit of the courts, there is a risk that defense attorneys will be reluc-
tant to zealously object to offers made by team members to sanction
a participant or to terminate their participation in the program, out
of fear that such a reaction might hurt the collaborative spirit of the
team. Our observations, however, did not confirm this concern. Most
sanctions involved writing a letter of explanation, an obligation that
did not jeopardize the defendants’ due process rights. Additionally,
our observations of the morning team meetings indicated that in the
rare cases in which legal disputes arose, the question was brought
before the court in front of the participant and dealt with according
to mainstream criminal procedure. Prosecutors, rather than insisting
on terminating the program for participants who repeatedly failed to
comply, were typically attentive and flexible. Defense attorneys were
typically not pressured to agree with the requirement to discharge
participants from the program, because the ethos shared by all the
parties is to maintain participation as far as possible.
In fact, it was more common to see a participant asking to “get
out” of the program than to see a prosecutor requesting that they be
Downloaded from https://academic.oup.com/ajcl/advance-article/doi/10.1093/ajcl/avaa017/5889938 by Bar-Ilan University user on 16 August 2020
29
LESSONS FROM AN ETHNOGRAPHIC STUDY
2020]
discharged. In many instances, when participants expressed a wish to
quit the program, team members persuaded and even pressured them
to continue. Accordingly, the more pressing concern that arose from
our observations was not the reluctance of defense attorneys to zeal-
ously object to prosecutorial requests, but rather the over-enthusiastic
manner in which they tried to convince reluctant participants to stay
in the program. Potentially, this might jeopardize participants’ due
process rights.
The concern for defendants’ rights remained unanswered in the
few cases in which the defense attorney was not affiliated with the
Public Defense Office. In these cases, morning meetings were ar-
ranged in a way to allow for the private defense attorney to attend the
portion of the meeting relating to their client. Although all procedural
rules were maintained, it was clear that those defense attorneys were
not part of the shared ethos of the community court, and in this sense
acted as “outsiders” to the community court team. We did not see vio-
lations of procedural rights, but a skeptic might be concerned that
participants who are represented by such “outsiders” might be treated
differently, and less favorably, than those who are represented by law-
yers affiliated with the Public Defense Office who are therefore better
informed and involved in the institutional culture of the community
courts.
B. Addressing the Second Critique: Net Widening and Increased
Risk of Incarceration
One characteristic of the Israeli model is significant in relation
to the risk of net widening: the target population of the Israeli com-
munity courts is those who can expect a sentence of imprisonment
of approximately one year.112 Therefore, the concern that the commu-
nity court participants would have not been criminally processed had
they not been referred to community court, is irrelevant in the Israeli
context. People accused of minor “quality of life” transgressions are
not referred to community courts. Typically, those types of offenses
either lead to deferred prosecution or are closed without any criminal
processing.
Of relevance, however, is the concern that the community courts
are using social services that otherwise would have been more access-
ible to non-criminals. Once again, the fact that the offenses included
in the Israeli model represent a level of severity that is likely to lead
to incarceration, makes a difference. In such cases, the referral of com-
munity court defendants to welfare services should not be compared
with referring them to such services outside the penal system, but
112. Recently, we were informed by the head of the project steering committee
that they are starting to expand the target population, by addressing those expecting
an eighteen-month incarceration sentence in mainstream courts. However, this was
not the policy during the study.
Downloaded from https://academic.oup.com/ajcl/advance-article/doi/10.1093/ajcl/avaa017/5889938 by Bar-Ilan University user on 16 August 2020
30
THE AMERICAN JOURNAL OF COMPARATIVE LAW
[Vol. XX
with sending them to prison. True, a broader welfare system could as-
sist many non-criminal citizens, but those who are at the community
court are indisputably in acute need of those services.113
Another area of concern is that unsuccessful participants are sen-
tenced harshly. A quantitative examination is needed to consider the
program dropout rates and the punitive outcomes for those who leave
it, in comparison with the punitive outcomes of non-community court
defendants who were indicted for similar offenses.114
C. Addressing the Third Critique: Insufficient Knowledge About the
Effectiveness of the Community Courts
The current study is qualitative in nature and its goal was not to
evaluate the effectiveness of the Israeli community courts in achieving
their stated goals, but rather to characterize their operation in light
of existing theories and practices.115 The study, however, may comple-
ment existing and future evaluation studies as it sheds light on the
dynamics in the community courts and the theories behind them. In
doing so, it provides possible explanations as to why certain programs
perform better than others and how programs should (and should
not) implement therapeutic, collaborative, and community-centered
practices.
D. Addressing the Fourth Critique: Securing Excellence While
Expanding the Program
The experience of other countries shows that the success of
problem-solving courts depends, to a significant extent, on the level of
model fidelity, namely, on adherence to the principles of the model.116
Since the Israeli model was carefully constructed by a national steering
committee with representatives from all relevant law enforcement
agencies, it generally did not suffer from “second generation” short-
comings. However, maintaining model fidelity will be crucial as more
113. Another relevant fact is that, according to Israeli law, citizens are entitled
to a broad range of social services, from social security funding due to unemployment,
disability, or age, to mental health treatment for those in need. The legal infrastructure
exists, but there is a long waitlist for many programs.
114. Our evaluation study will provide such information in the coming years.
115. Our next study is designed to evaluate the program empirically, measuring
outcomes including recidivism rates among community court participants in com-
parison with a control group; trust, procedural justice, and law obedience perceptions
among graduating participants; as well as the subjective wellbeing of community court
participants and their family members.
116. See generally Grant Duwe & Valerie Clark, Importance of Program Integrity:
Outcome Evaluation of a Gender-Responsive, Cognitive-Behavioral Program for Female
Offenders, 14 crIMInology & Pub. Poly 301 (2015). See also Mitchell J. Miller & Holly
Ventura Miller, Rethinking Program Fidelity for Criminal Justice, 14 crIMInology &
Pub. Poly 339 (2015) (showing worrisome outcomes of problem-solving courts and
ascribing them to the disparity between the theory and its implementation).
Downloaded from https://academic.oup.com/ajcl/advance-article/doi/10.1093/ajcl/avaa017/5889938 by Bar-Ilan University user on 16 August 2020
31
LESSONS FROM AN ETHNOGRAPHIC STUDY
2020]
community courts will begin their operation in other jurisdictions
in Israel.
Additionally, our observations highlight the fact that the commu-
nity court model relies heavily on the abilities and behaviors of all
team members. They are expected to be attentive to the participants
and their needs, to treat them respectfully and empathetically, and to
be able to identify reasons for optimism even in difficult situations—
all while fulfilling their traditional legal roles. The emphasis in the
community court model on how due process rights are implemented
rather than on which rights apply requires team members to act as
“legal superheroes”: to make the best professional decisions and to do
so caringly. Therefore, the risk of “second generation” implementation
problems is closely linked with the provision of appropriate training,
support, and physical conditions for all team members, in particular
to the judges who carry much of the load, to enable them to work
efficiently.
1. Training
Apart from probation officers and community social workers,
community court team members have legal rather than therapeutic
backgrounds. Their roles in the program, however, require them to use
therapeutic practices, including active listening, a strength-based ap-
proach, motivational interviewing, avoidance of “lecturing,” engaging
family members, and more. Personal intuition, emotional intelligence,
and strong motivation are a good, but not sufficient, starting point.
There is a need for long-term, in-depth training that will enable the
various team members to fulfill their roles in the best possible way.
The community court judges face the greatest challenge. They are ex-
pected to use therapeutic practices while maintaining their judicial
role. Our observations revealed that, at times, the lines were blurred,
and judges shifted to a therapeutic role without having the requisite
training. All community court judges need to be trained for their
unique role as community court judges, similar to training programs
offered in the United States and elsewhere.117
2. Supervision
In addition to professional training, team members should be sup-
ported by professional supervision, similar to the individual and group
supervision programs common in the social work and mental health
professions. All community court team members operate outside their
117. See Cooper, supra note 67, at 5 (discussing the need for adequate and ongoing
training for drug court team members); Douglas B. Marlowe, David S. Festinger & P.A.
Lee, The Judge Is a Key Component of Drug Court, 4 drug ct. rev. 2 (2004) (discussing
the central role of the judge in drug courts and the importance of judicial training for
judges in drug courts).
Downloaded from https://academic.oup.com/ajcl/advance-article/doi/10.1093/ajcl/avaa017/5889938 by Bar-Ilan University user on 16 August 2020
32
THE AMERICAN JOURNAL OF COMPARATIVE LAW
[Vol. XX
traditional disciplinary comfort zone and are likely to face ethical, per-
sonal, and professional dilemmas, which their colleagues outside the
community court cannot help them solve. They need accessible sup-
port systems that would allow them to safely share these dilemmas
and discuss the difficulties they face.
3. Workable Environment
The complex demands placed on community court team members
require them to exert significant emotional and mental effort during the
hearing days. The judges bear the brunt of the burden as they are expected
to fulfill their regular judicial roles, including making legal decisions and
ensuring that the procedural rules are maintained and everything is docu-
mented, while following a therapeutic vision: maintaining eye contact with
the participants, engaging in a direct, respectful, and patient dialog with
them, addressing their strengths, and responding to their subjective experi-
ences. Judges are expected to treat the issues holistically, ask supporters to
join the discussion, and so on. To enable judges to act as “super judges,” it
is important to provide them with a comfortable work environment, which
includes sufficient breaks, a reasonable caseload, and adequate time for
each case, as well as meaningful administrative assistance.
E. Additional Critiques: Implementation Challenges
Our observations revealed some specific challenges that relate
to the abovementioned critiques but can be discussed separately.
These include the risk of over-patronizing the participants, the risk
of ignoring their relationships and interdependencies, the failure to
involve crime victims, and the duration of the process.
1. The Risk of Over Patronization
The community court model encourages the empowerment of par-
ticipants, focusing on their strengths and engaging them in a respectful
dialog. At the same time, some level of paternalism is acceptable, even
expected, because there are occasions in which team members are re-
quired to make decisions for the participants, as for example, when
selecting an appropriate treatment program or referring them to a
substance abuse rehabilitation treatment. Even in these instances,
however, the discussion about what is best for the participant should
avoid patronizing them. Clear guidelines and constant reflection on
how to cope with such encounters are important for maintaining an
empowering attitude and refraining from patronizing the clients.
2. The Risk of Ignoring Relationships and Interdependencies
The Israeli community court model is inspired by a communitarian
perception of the self, which stresses the interdependence between the
individual and others: family members, friends, colleagues, and other
Downloaded from https://academic.oup.com/ajcl/advance-article/doi/10.1093/ajcl/avaa017/5889938 by Bar-Ilan University user on 16 August 2020
33
LESSONS FROM AN ETHNOGRAPHIC STUDY
2020]
community members. Such a communitarian perception assumes that
the individuals who break the law and come before the court are af-
fected by their relationships with others, and that their behavior af-
fects these relationships. A communitarian approach acknowledges
the mutual dependence between the participants and the others with
whom they are in contact, and considers these ties to be part both of
the problem and of the solution. A communitarian perception of the
self was reflected in hearings in which participants’ relatives were
invited to take part in the discussion, when the judges spoke with par-
ticipants about their family and social status, or when rehabilitation
plans addressed the needs of participants’ families beyond, their own.
Nevertheless, these occurred only in some of the hearings. Criminal
law is based on the assumption of autonomy and individual responsi-
bility of anyone who is considered fit to stand trial. Our observations
highlighted the difficulty of the community courts to implement a
communitarian perception of the participants. In order to strengthen
the communitarian perspective, community court judges should ac-
knowledge the participants’ relationships with others at the hearings.
Community court judges may assign a participatory role to supporters
or ask them to complete a questionnaire relating to the participants’
social, family, and professional contacts.
3. Failure to Involve Victims of Crime
A broad community justice approach acknowledges the unique
status of crime victims and their special interest in the legal process
that results from their victimization. Victims are part of the commu-
nity in which the offense took place, and are part of the same social
network, either because of the crime that created a new relationship
(typically, one marked by anger, fear, and distrust) or because of earlier
contact. In both cases, a community justice approach seeks to address
the harm that the crime inflicted on the victim and on the relationship
between the offender and the victim.
According to Israeli law, victims of sexual and violent crime have
certain procedural rights, such as the right to protection from the de-
fendant during the process, the right to be informed about the process,
and the right to voice their opinions at certain junctions.118 The
present study showed that the Israeli community courts have yet to
articulate the ways in which victims are to be involved in the process,
despite the broad understanding that this should be part of the model.
During the period of the study, crime victims were hardly mentioned
at all, and never heard. In the few instances in which the victims
were mentioned, the focus was on the participants’ accountability and
118. The Crime Victims’ Rights Act, 5762–2001, SH No. 1782 p. 183. See also Anat
Horovitz & Thomas Weigend, Human Dignity and Victims’ Rights in the German and
Israeli Criminal Process, 44 ISr. l. rev. 263 (2011) (analyzing the various rights that
crime victims received with the enactment of the Crime Victims’ Rights Act).
Downloaded from https://academic.oup.com/ajcl/advance-article/doi/10.1093/ajcl/avaa017/5889938 by Bar-Ilan University user on 16 August 2020
34
THE AMERICAN JOURNAL OF COMPARATIVE LAW
[Vol. XX
rehabilitative process. Some participants were requested to write a
letter of apology to the victim; these letters, however, were not sent to
the victims but used for the rehabilitative needs of the participants.
One possible way to address victims’ needs and rights in the commu-
nity court setting is to conduct restorative justice processes that in-
volve direct encounters between victims, offenders, their supporters,
and community representatives.119 The Peacemaking Program that
the Red Hook Community Court operates is an example of a restora-
tive justice program operating within a community court setting.120
4. Lengthy Process
The Israeli community court model assumes a process of fifteen
months on average. During the study it became clear that in many
instances the process takes longer. A prolonged process may increase
the likelihood of success, but it violates participants’ liberty rights.
A clear definition of what “success” means in terms of addiction, crime,
mental health, employment, and other factors may help find a balance
between effective interventions and the principle of parsimony.
concluSIon
Thousands of specialized courts are operating in hundreds of jur-
isdictions worldwide. Despite shared key components, they vary sig-
nificantly in their mode of operation, target population, and outcomes.
Although empirical studies leave room for optimism, the specialized
courts face significant challenges in their daily operation. This Article
provided an in-depth look at one variant of specialized courts—com-
munity courts—as they were implemented in Israel, based on the Red
Hook Community Justice Center in New York. The ethnographic ob-
servations of over 100 court hearings, together with several morning
meetings and out-of-court activities, provided detailed information
about the general ambiance of the court.
Our findings suggest that the Israeli community court model offers
a revolutionary approach to addressing mid-level crimes. According to
this holistic model, team members endeavor to go beyond honoring
due process rights, and seek to promote participants’ social rights and
general wellbeing. Defense attorneys, prosecutors, and probation of-
ficers, led by the judges, managed to collaborate on a regular basis
and to reach creative solutions for the benefit of participants. The col-
laborative ethos and shared goal of helping participants rehabilitate
were evident to the court clientele, and generated a sense of belonging
119. For a comprehensive collection on victims and restorative justice, see Inge
vanfraecheM, danIela bolívar fernández & Ivo aertSen, vIctIMS and reStoratIve JuStIce
(2015). See also Gal, Dancig-Rosenberg & Enosh, supra note 72.
120. See Peacemaking Program, ctr. for court InnovatIon, www.courtinnovation.
org/programs/peacemaking-program (last visited May 2, 2020).
Downloaded from https://academic.oup.com/ajcl/advance-article/doi/10.1093/ajcl/avaa017/5889938 by Bar-Ilan University user on 16 August 2020
35
LESSONS FROM AN ETHNOGRAPHIC STUDY
2020]
and trust among them. Consequently, most participants were highly
committed to the program and exhibited strong motivation to succeed
in their rehabilitative process. In contrast to the mainstream crim-
inal process, which considers a given offense through the lens of a
predetermined set of possible sentences, the community court model
involves a holistic and comprehensive set of rehabilitative, restitutive,
and accountability elements. Together, they are designed to transform
participants’ lives and help them desist from crime.
The data were analyzed from the perspective of various relevant
theoretical frameworks, to inform us of the ways in which Israeli
community courts implement the principles of specialized courts in
general and of community courts in particular. They also point to the
need to pay close attention to how these courts continue their oper-
ation, within the broader adversarial legal framework of criminal law.
The challenges identified in this Article raise questions that are rele-
vant to other community courts in the United States and elsewhere.
They highlight the complexity inherent to the operation of a non-
adversarial court within the broader adversarial, punitive criminal
justice system. With the ongoing search for non-punitive alternatives
designed to address the problem of mass incarceration, we are likely
to see the establishment of additional community courts and other
types of specialized courts. These new courts can benefit from the les-
sons learned from this study.
The findings of the study have been affected by the formative stage
that the Israeli community courts were in at during data collection. It
is reasonable to assume that with the maturation of the model many
daily practices will evolve and change. Nevertheless, considering that
many specialized courts globally are at different stages of development
and maturation (including “second-” and “third-generation” courts)—
our conclusions contribute to the debate about the challenges faced by
community courts and ways to address them.
It is also important to take into account some methodological limi-
tations, which are inherent in ethnographic research. First, although
our involvement in the setting was limited to non-participant obser-
vers, our presence in the courtroom and at the morning meetings was
known and visible to the professionals. Therefore, it is reasonable to
assume that our mere presence must have, to some extent, affected the
dynamics and the interactions taking place. Second, as we discussed
earlier, ethnographic description is not simply a factual report of a col-
lection of events and activities, or even a report of the local meanings
of such events and activities.121 Rather, it is “our own constructions
of other people’s constructions of what they and their patriots are
up to.”122 Ethnographic descriptions are, therefore, “interpretations
121. See eMerSon, supra note 81, at 33.
122. Id.
Downloaded from https://academic.oup.com/ajcl/advance-article/doi/10.1093/ajcl/avaa017/5889938 by Bar-Ilan University user on 16 August 2020
36
THE AMERICAN JOURNAL OF COMPARATIVE LAW
[Vol. XX
of interpretations”;123 they do not purport to represent an “objective”
reality. The interpretive process by nature involves the attribution of
subjective meanings and implications. Indeed, in our observations, we
noticed and documented specific occasions or occurrences and chose to
report only some of them. We identified specific categories and themes
that had emerged from our documented descriptions. Other observers
might have noticed and documented other incidents and interpreted
the observed events or activities differently. It is clear, then, that this
study, like any other ethnographic study, entails subjective interpret-
ations of the observed events as we—the observers—perceived, under-
stood, and analyzed them. Third, ethnographers of organizations
know that their study will immediately be read by the people they
purport to study. Our analysis might have been somewhat affected
by our sensitivity to what our research subjects—community courts
stakeholders—would think about it.124 Mindful of this concern, we
consciously conducted an analysis as wide in scope as possible, given
that our audience is diverse and not limited to community courts’ pro-
fessionals or stakeholders.
123. Id.
124. See Sharon Macdonald, Ethnography in the Science Museum, London, in
InSIde organIzatIonS: anthroPologIStS at work, supra note 84, at 77 (discussing the
inherent gap between the expectations regarding the research outcomes among the
research subjects and what the ethnographer eventually offers in the final publication.
This gap sometimes leads to anger and frustration among the research subjects, whose
views or contributions do not receive what they consider adequate consideration in the
research findings).
Downloaded from https://academic.oup.com/ajcl/advance-article/doi/10.1093/ajcl/avaa017/5889938 by Bar-Ilan University user on 16 August 2020
... Wexler and Winick describe the processes as of itself therapeutic or healing. Judges use motivational interviewing (Gal & Dancig-Rosenberg, 2020;Winick, 2003), to help individuals to acknowledge problems, identify personal goals, support movement towards these goals, and tackle underlying issues to reduce offending behaviour. Therapeutic court programmes provide practical, personal, and clinical support; and reward progress (Nolan, 2009, p. 44;Winick, 2003, p.187). ...
Article
Full-text available
This review article argues for a better acknowledgement by penal philosophers of the diversity of subjects, agents, and practices of punishment. Much current penal philosophy has an unhelpful hyper‐focus on the criminal punishment of culpable adults, by states, often through imprisonment. This paradigmatic case is important, but other subjects, agents, and practices of punishment are not statistically insignificant side‐issues, and a comprehensive account of punishment should address them. Our understanding of punishment as a whole can be enhanced by considering non‐paradigmatic punishment, with implications for whether and when punishment is justified, how we should understand appropriate authority, and how we should understand and engage with abolitionist arguments. We explore non‐paradigmatic penal practices (community punishments, suspended prison sentence, restorative justice, and alternative jurisprudence), non‐paradigmatic punishing agents (International judicial bodies, schools, and religious communities; with practices such as boycotts, shaming and shunning) and non‐paradigmatic subjects of punishment (collective agents, corporations and children).
ResearchGate has not been able to resolve any references for this publication.