Discuss about the Therapeutic Jurisprudence and Problem-Solving Courts.
The establishment and continued growth of therapeutic jurisprudence remains a very significant legal theoretical development in the justice system over the last couple of decades.[1] The essential focus of this concept is to establish whether the legal system or process contributes to the emotional, physical and psychological well-being of the individual in court.[2] Problem-solving courts or solution focused courts, driven by the philosophy of therapeutic jurisprudence seek to address all the underlying issues concerned in a case rather than simply tackling the legal problem.[3] The overall significance in the development of this concept is to ensure the justice system attains its object of rehabilitation. In the case study provided, James Dowey, a student is charged with assault to which he pleads guilty. During sentencing, his attorney highlights various factors that may have contributed to his actions. The following discourse aims to establish whether the court considered the principles of therapeutic jurisprudence by adopting a problem-solving approach. It undertakes to establish whether the procedures applied suffice in improving the psychological, and physical wellness of all those who come into contact with the legal process.
The evolution of this concept is traced back to the works of David Wexler and Bruce Winick on Mental Health Law in the US.[4] Wexler explored and proposed the idea of law as a mode of therapy which he subsequently described as therapeutical jurisprudence, a concept he and Winick have expanded. Their research was driven by their observation of the negative consequences in the application of mental health law. The concept has since developed, propelled by extensive academic research and its recognition in various conferences the world over.[5] Legal practitioners have come to appreciate its significance particularly in mental health law, solution-focused courts and court diversion programs.
Australia has not been left behind in the development of therapeutic jurisprudence; although it has not been without concerns.[6] Magistrate’s courts in Australia have readily adopted the concept of therapeutic jurisprudence so as to ensure the court experience is more meaningful and priority is given to offender rehabilitation. In 2004, Western Australian country magistrates’ committed to a resolution that would see them apply therapeutic jurisprudence in their work.[7] The Magistrates’ Court Act 1989 (Vic) also requires that the Chief Justice consider magistrate’s competence and knowledge in therapeutic jurisprudence as well as restorative justice prior to assignment.[8] The development of this concept in the magistrates’ courts is driven by the desire to promote rehabilitation by ensuring that in addition to ensuring fairness in the court processes, judicial offices exude concern and compassion for individuals brought before them.[9]
It is important to note, however, that therapeutic jurisprudence objectives do not intend to counter or surpass other goals of justice.[10] In as much as it aims to improve the psychological well-being of those subjected to the justice system, its application is guided by the core objectives of justice and where conflict arises between therapeutic principles and justice principles, the principles of justice remain supreme. However, legal actors are advised to consider the consequences of their interpretation and application of law to all parties involve so as to minimise any negative effects in the quest for justice; the underlying principle is rehabilitation over punishment or deterrence.[11] Essentially, the underlying significance of therapeutic jurisprudence is to humanise the justice system.
‘Problem-solving’ or ‘Solution-Focused’ courts are special courts which are established to avail a new approach to criminal activity by considering the underlying problem which may influence offenders to act as they did.[12] As with the concept of therapeutic jurisprudence, these courts originated in the United States with a Drug Court established in 1989 and have since grown to encompass mental health and family courts among other problem-solving courts. Largely influenced by the therapeutic jurisprudence ideology, these courts adopt sentences which would offer the offender a more rehabilitative experience for example through drug or mental health treatment. They also collaborate with other social care services and professional and incorporate an assessment of the offenders needs so as to establish the best possible approach to sentencing and treatment.[13] The new approach to criminal matters has established new judicial responsibilities where officers are required to be emphatic, compassionate and engaged in the process of rehabilitating the accused.[14]
The development of these courts was driven by a shift in the focus of the legal officers from the offender and their offence to the underlying issues that caused the individual to act as they did and an effort to find solutions to these underlying problems.[15] They were driven by the frustrations of courts, victims, offenders and the public at large on the inadequacies of the traditional systems of case processing, overpopulated prisons, increasing backlog in court cases, a deterioration in social and community systems that previously offered individual support and various other challenged faced by judicial officers and correctional authorities in the rehabilitation of offenders. Solution-based courts are seen to offer wholesome rehabilitation solutions and are also more economical than the traditional system of harsh sentences aimed at deterrence.[16] As such Australia has seen a rise in the establishment of various problem-solving courts throughout its territories; these include Drug courts, Medical Health Courts, Family Violence Courts among others. However, the legal foundation and constitutionality of these courts differ from one jurisdiction to another.
As aforementioned, therapeutic jurisprudence is driven by improvements to the emotional and psychological well-being of parties in the legal process. In the case study provided, the attorney representing the accused illuminated the principles of this concept by attempting to make it known to the court the underlying factors that may have influenced James Dowey’s actions as also petitioning court to approach the matter with empathy and compassion. His appeal was driven by the desire to see that the accused got the treatment and rehabilitation he deserved rather than facing a harsh punishment that would likely expose him to anti-therapeutic consequences. By being alive to the fact that all these factors were crucial and may have significantly influenced the offender’s actions, the attorney demonstrated the appropriate consideration for the well-being of the accused and as such embodied therapeutic jurisprudence in his role as a legal officer.
Additionally, therapeutic jurisprudence calls for judicial officers to be compassionate and apply humanity as they exercise their judicial functions so as to minimise the negative effects that may arise from the legal process. In this case study, therapeutic jurisprudence would require that the judge considers the factors presented to him by the attorney with care and compassion and not in the disinterested manner that has been the tradition of judicial officers. From a point of humanity, the judge can appreciate that the factors highlighted by the attorney most likely influenced the actions of the accused. Additionally, any sentence issued should be in the best interest of the accused, would it aggravate his mental and emotional instability or would it ensure he gets the treatment and rehabilitation he needs. Ordering an assessment of the accused goes to show that the judge appreciates a more humane approach to rehabilitation of offenders. As such, it is clear that the judge in his capacity as a judicial officer was appropriately considerate of the emotional and psychological well-being of the accused and his family members.
The prosecutor, on the other hand, took a more traditional stance; his position was driven by the objective of justice to ensure the community at large is protected. This position embodies the traditional approach to criminal justice which is characterised by harsh punishment and deterrence. As aforementioned, in exercising therapeutic jurisprudence, it is important that practitioners do not trump the underlying principles of justice. However, in the same regard, therapeutic jurisprudence aims to minimise the negative effects arising from the traditional approach. As such, the prosecutor’s approach was not appropriate to improve the emotional and psychological well-being of the accused.
Conclusion
In conclusion, as illustrated in the discourse above, therapeutic jurisprudence is a significant development in the legal profession and its effects cannot go unnoticed. Its influence is particularly notable in the magistrates’ courts which have committed to appreciate and apply its principles to the extent that they coincide with the core principles of justice. Problem-solving courts have been established from the application of therapeutic jurisprudence and as such aim to ensure offenders are provided with the best possible solution for rehabilitation. With this in mind, it is evident that some of these precepts have been considered in the case study so as to ensure to improve the well-being of the accused. The attorney and the judge have considered other underlying problems the accused it facing, such as alcohol influence, mental health issues and other challenges so as to ensure the sentence is relevant to his situation. The prosecutor, however, has failed to show the empathy and concern required of legal officers in the exercise of therapeutic jurisprudence. All in all, the overall court proceedings were appropriate to improving the emotional and psychological well-being of those involved.
Articles/Books/Reports
Ackerman, George, Law and Courts: Current Perspectives from InfoTrac (Cengage Learning, 2011)
Australian Institute of Judicial Administration (AIJA), ‘Problem-Solving Courts’ www.aija.org.au/index.php/research/australasian-therapeutic-jurisprudence-clearinghouse/problem-solving-courts
Best, Charlotte, ‘Criminal Minds: A Therapeutic Jurisprudence Perspective on Neurodisability and the Criminal Justice System’ (2016) 3 Public Interest Journal of New Zealand 164
Dr Jeffries, Samantha and Dr Bond, Christine E W, ‘Does a Therapeutic Court Context Matter?: The Likelihood of Imprisonment for Indigenous and Non-Indigenous Offenders Sentenced in Problem Solving Courts’ (2013) International Journal of Law, Crime and Justice 11
King Michael, Ariel Freiberg and Becky Batagol, Non-Adversarial Justice (Federation Press, 2014)
King, Michael S and Auty, Kate, ‘Therapeutic Jurisprudence: An Emerging Trend in Courts of Summary Jurisdiction’ (2005) 30 (2) AltLJ 69
Perlin, Michael L, A Prescription for Dignity: Rethinking Criminal Justice and Mental Disability Law (Ashgate Publishing Ltd, 2013)
Popovic, Jelena ‘Court Process and Therapeutic Jurisprudence: Have We Thrown the Baby Out With the Bathwater? (2007) eLaw Journal: Murdock University Electronic Journal of Law (Special Series) 60
Slater, Lyn K and Finck, Kara R, Social Work Practice and the Law (Springer Publishing, 2012)
Webster, David B, ‘The Development of Therapeutic Jurisprudence: From Theory to Practice’ (1999) 68 Rev Jur UPR 697
Legislation
The Magistrates’ Court Act 1989 (Vic)
Other
Karras, Maria, McCarron Emily, Gray Abigail and Ardasinki Sam, ‘On the Edge of Justice: The Legal Needs of People with Mental Illness in NSW’ (2006) Law and Justice Foundation
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