Article: Care and Control in Collaborative Courts: Ethnographic Insights into Therapeutic Justice By Hadar Dancig-Rosenberg & Tali Gal* | Practice Source - Legal News and Views

*Hadar Dancig-Rosenberg, Professor of Law and Associate Dean for International Affairs, Bar-Ilan University Faculty of Law; Visiting Professor, Northwestern Pritzker School of Law (winters 2023–2026); Helen Diller Visiting Professor (2016–2018, 2021–2023) and Affiliate at the Center for the Study of Law and Society, UC Berkeley School of Law; Co-Chair, The Israeli Criminal Law Association. Tali Gal, Professor of Law and Criminology and Chair in Child and Youth Rights, The Minerva Center for Human Rights, The Hebrew University of Jerusalem Faculty of Law and Institute of Criminology; Visiting Researcher, Max Planck Institute for the Study of Crime, Security and Law.Show MoreCollaborative courts, such as drug courts, reentry courts, and veterans treatment courts, have long been hailed by reformers as therapeutic alternatives to the adversarialism of traditional criminal justice. Proponents argue that such courts embody therapeutic jurisprudence, offering accountability and care rather than punishment. Yet this vision often clashes with concerns about control and coerciveness, particularly when defendants are expected to relinquish autonomy in exchange for emotional validation and institutional support. Based on ethnographic observations conducted between 2018 and 2023 in four collaborative courtrooms in Alameda County, California, this Essay explores the pervasive logic of “tough love” in collaborative courts: a model in which compassion and coercion are inextricably intertwined. Judges play quasi-parental roles, often praising vulnerability and “emotional growth” while simultaneously imposing rigid behavioral codes and exercising broad discretionary power. Drawing on Michel Foucault’s and contemporary critics’ analyses of disciplinary institutions, we suggest that these courts function as spaces of moral training and surveillance, governed more by affective control than by legal neutrality. Our findings complicate the celebratory narrative of problem-solving courts: while many defendants express gratitude and some clearly benefit from sustained engagement, the overall picture is ambivalent. The courts’ daily operations often blur the line between supportive guidance and paternalistic overreach. Building on our ethnographic observations and critical literature, we propose several design commitments that can preserve the caring and dignity-affirming features of collaborative courts while mitigating forms of penal overreach.

Introduction

Over the last three decades, collaborative and problem-solving courts have transformed criminal adjudication in the United States and abroad.¹1.See generally Greg Berman & John Feinblatt, Good Courts: The Case for Problem-Solving Justice (2005) (outlining the history, objectives, and achievements of problem-solving courts in the United States); Bruce J. Winick, Therapeutic Jurisprudence and Problem Solving Courts, 30 Fordham Urb. L.J. 1055 (2003) (describing the scope and subject matter of problem-solving courts in general). “Collaborative courts” is largely a regional label, especially used in California, for the same family of problem-solving courts, emphasizing multiagency partnerships (between courts, treatment providers, probation services, and community organizations). See, e.g., Collaborative Courts, Superior Ct. of Cal.: Cnty. of Alameda,https://www.alameda.courts.ca.gov/divisions/collaborative-courts [https://perma.cc?/QD5Q-5752] (last visited Jan. 6, 2026). We use these two terms interchangeably in this Essay.Show More From the first drug court in Miami to today’s diverse array of modern courts, these forums have promised to address the failures of adversarial processing by integrating treatment, supervision, and judicial engagement.²2.See, e.g., Pamela M. Casey & David B. Rottman, Problem-Solving Courts: Models and Trends, 26 Just. Sys. J. 35, 37–39, 43–44 (2005). Their ethos is one of accountability with care, offering defendants the possibility of rehabilitation rather than incarceration.³3.Anthony C. Thompson, Courting Disorder: Some Thoughts on Community Courts, 10 Wash. U. J.L. & Pol’y 63, 75 (2002). Judges and practitioners who devote themselves to this work are often deeply committed to fostering dignity, voice, and opportunities for participants who might otherwise be lost in the revolving door of jail and probation.⁴4.See Pamela Casey & David B. Rottman, Therapeutic Jurisprudence in the Courts, 18 Behav. Scis. & L. 445, 449–51 (2000). For an ethnographic portrayal of the dynamics and interactions between professionals and participants in community courtrooms in Israel, see Tali Gal & Hadar Dancig-Rosenberg, “I Am Starting to Believe in the Word ‘Justice’”: Lessons from an Ethnographic Study on Community Courts, 68 Am. J. Compar. L. 376, 409–10 (2020) [hereinafter Gal & Dancig-Rosenberg, The Word Justice].Show More

Yet these same practices raise questions that cannot be overlooked. Collaborative courts rely on intensive monitoring, regular compliance checks, and a distinctive blend of praise and sanction.⁵5.See Casey & Rottman, supra note 2, at 37. Judicial tones can range from encouragement to paternalism, with discretion that blurs the line between voluntary support and coercive leverage.⁶6.See, e.g., James L. Nolan, Jr., Reinventing Justice: The American Drug Court Movement 102–03 (2001). What appears therapeutic on the surface may, in practice, extend the reach of penal power into participants’ daily lives, governing their employment, housing, and family decisions. In this sense, the very features that make these courts effective at stabilizing participants may also risk reinforcing disciplinary logics of observation, normalization, and control.

This Essay seeks to examine this hypothesis by situating collaborative courts within that tension. Our goal is not to dismiss their accomplishments—indeed, many of the judges, attorneys, and case managers we encountered demonstrate remarkable dedication and compassion—but to render visible the institutional costs and normative trade-offs that accompany this model of justice. We do so by drawing on institutional ethnography of four divisions of the Alameda County Collaborative Courts: the Misdemeanor Drug Court, Felony Drug Court, Veterans Treatment Court, and Reentry Court. Through detailed observations of hearings conducted between 2018 and 2023, we map how dignity and care operate alongside surveillance, coercion, and paternalism.⁷7.See infra Parts IV–V. We analyze these practices through the lens of Foucault’s account of disciplinary institutions and contemporary critiques of therapeutic justice.⁸

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Care and Control in Collaborative Courts: Ethnographic Insights into Therapeutic Justice