A Court by Any Other Name

Hon. Peggy Hora (Ret.) posted this article to the Justice Speakers Institute:

Drug Treatment Courts (DTC) and those that have a similar outlook have been called “problem-solving, accountability, behavioral justice, therapeutic, problem oriented, collaborative justice, outcome oriented and constructive intervention courts.”1 All rely on therapeutic jurisprudence and non-adversarial justice and all designations refer to a different way of doing business where the focus is on treatment and recovery rather than adjudication and disposition.

Therapeutic Jurisprudence

It all began with the development of Therapeutic Jurisprudence(TJ) in the late 1980s.  The term was first used by Professor David B. Wexler,  Distinguished Research Professor of Law at the James E. Rogers College of Law, Tucson, Arizona, Professor of Law at the University of Puerto Rico and the Director of the International Network on Therapeutic Jurisprudence, in a paper delivered to the National Institute of Mental Health in 1987. Along with the late Professor Bruce Winick, Silvers-Rubenstein Distinguished Professor of Law and Professor of Psychiatry and Behavioral Sciences at the University of Miami in Coral Gables, Florida, they suggested the need for a new perspective, TJ, to study the extent to which substantive rules, legal procedures, and the role of legal actors (lawyers and judges primarily) produce therapeutic or antitherapeutic consequences for individuals involved in the legal process.

Ten years later, Judges William Schma, Circuit Court in Kalamazoo, Michigan and Peggy Fulton Hora, Superior Court of California, were experienced drug treatment court judges who were interested in finding a jurisprudential basis for the DTC movement.  They found Wexler and Winick’s work, and, after meeting with them, decided it was a good fit.  In 1999 they, along with John T.A. Rosenthal, published the first article linking TJ with DTCs,2 “Therapeutic Jurisprudence and the Drug Treatment Court Movement: Revolutionizing the Criminal Justice System’s Response to Drug Abuse and Crime in America.”

The Conference of Chief Justices and the Conference of State Court Administrators appointed a Joint Task Force “to consider the policy and administrative implications of the courts and special calendars that utilize the principles of therapeutic jurisprudence and to advance strategies, policies and recommendations on the future of these courts.”3  They were presented with a resolution supporting and encouraging the dissemination of therapeutic jurisprudence theory in the nation’s court system through DTCs. There was an objection to the words “therapeutic jurisprudence” and the body adopted “Problem-Solving Courts” as the appropriate name.  The resolution, passed in August of 2000, said it was “recognizing that courts have always been involved in attempting to resolve disputes and problems in society, but understanding that the collaborative nature of these new efforts deserves recognition.”4

Solution Focused Courts

Another decade or so later, Magistrate Michael King in Australia developed a bench book5 on these types of courts and found “solution-focused” to be a better term.

“The processes the court uses to develop solutions—therapeutic, inclusive of participants and the court team—and in the concept of the solution that is being sought—addressing underlying issues and promoting an ability to lead a constructive, happy and law-abiding life in the community.”6

“…[T]he concept of a ‘problem-solving court’ does not recognize the centrality of participants in bringing about their rehabilitation. Rather, it implies that it is the court that solves the problem. This is not simply an issue with terminology. An examination of the underlying principles of different types of problem-solving courts—with the exception of some mental health courts—suggests they give inadequate weight to or ignore the central importance of participants being involved in decision-making concerning their rehabilitation in order to foster internal sources of motivation to change.”7

Somewhere along the way, the term “problem-oriented courts” was developed in Australia.  However, the Law Reform Commission of Western Australia had a quarrel with that terminology.  The Commission chose to use the term “court intervention programs” instead of the term “problem-oriented courts.”

They Are All the Same Kind of Court

Irrespective of the name such a court is called, the shared principles are:

  • Outcomes are the focus of the process, not traditional adversarial issues.
  • Procedural Justice/Fairness is fundamental to the process.
  • Decisions and procedures are evidence-based, manualized and there is fidelity to the model.
  • Decisions by the judge come after hearing from all the collaborative members of the team.
  • All principals of the Criminal Justice System are part of the team.
  • Focusing on addressing the underlying cause that triggered the current behavior.

Finally, we know that outcomes in these courts are better for the individual, his or her family, the community both through cost savings and reduction of crime and the judge.8

Read the full article with footnotes on the Justice Speakers Institute website.

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