Specialized criminal courts have now become the focus of innovation at the front-end of the federal criminal justice system and appear to be the dominant form of diversion. These courts now exist in at least 21 federal districts. Their rapid proliferation is notable, given that over the same time period, the use of pretrial detention has increased, the use of existing federal diversion has declined significantly, and the imposition of alternative to incarceration sentences by judges has continued to decrease. Specialized criminal courts now appear to be the predominant response to continuing concerns among judges and other stakeholders about the harshness of federal sentencing laws and limited federal sentencing options. Their use has been highlighted not only by the DOJ, but also by the bipartisan Charles Colson Task Force on Federal Corrections, a group created by Congress which in 2016 recommended encouraging and incentivizing alternatives to incarceration, including “front end diversion courts.”
Despite this support, their rapid expansion in such a short time is problematic for a variety of reasons. It is not clear what goals these courts are trying to achieve. The use and effectiveness of specialized criminal courts is complicated. Research on drug and other specialized courts in both the state and federal systems shows mixed results on measures such as recidivism reduction, cost-savings, and treatment outcomes. There are also significant procedural and other equity concerns with specialized criminal courts, including unequal access to justice. Although some of these new federal front-end specialized criminal courts show high completion rates, none has been formally evaluated, and publicly available documents about them raise questions about whether they conform to evidence-based practices.
This paper explores the origins and development of front-end federal specialized criminal courts and situates them in the existing landscape of diversion and alternative to incarceration laws and programs.
Christine S. Scott-Hayward,
Rethinking Federal Diversion: The Rise of Specialized Criminal Courts,
22 Berkeley J. Crim. L.