Challenges in Mainstreaming Specialty Courts

By Bartels, Lorana; Tomison, Adam | Trends & Issues in Crime and Criminal Justice, October 2009 | Go to article overview
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Challenges in Mainstreaming Specialty Courts

Bartels, Lorana; Tomison, Adam, Trends & Issues in Crime and Criminal Justice

Foreword | Problem-oriented justice seeks to incorporate innovative court practices to tackle offenders' behaviour and problems associated with offending. Over the last decade, the primary means of implementing such practices has been through the development of specialty courts. This paper presents an overview of the challenges associated with implementing aspects of specialty courts in the mainstream criminal justice system. The key issues explored are the need to promote equity of access, resourcing and the role of the judicial officer. Generic court intervention orders, such as the Victorian Court Integrated Services Program, are reviewed and the advantages of such approaches discussed. The paper also explores the means of promoting more cost-effective delivery of justice; the issues that can arise when judicial officers adopt a more therapeutic role in the administration of justice; and the need for comprehensive evaluation of court innovations. Finally, the need for cohesive policies on the development of problem-oriented justice, whether in the mainstream criminal justice system or specialty courts, is examined.

Adam Tomison


Specialty courts were first introduced in Australia in the late 1990s as part of the recognition that the social problems which may have contributed to a defendant's behaviour may require social or therapeutic, rather than legal solutions (Freiberg 2001). Therapeutic jurisprudence is the 'study of the role of the law as a therapeutic agent' and focuses on the law's impact on emotional life and psychological well-being (Wexler & Winick 1996: xvii). Phelan (2003: 99) suggests that problem-solving courts 'represent more than just structural or process changes. They challenge the nature of courts and represent something of a revolution in the way in which courts might operate in modern, democratic societies'.

There are currently a number of specialty courts, lists, approaches and court support services in place in Australia. All jurisdictions have specific programs for dealing with defendants with drug abuse issues. As King et al (2009) note, most of these programs have been extensively evaluated, with generally positive results. In addition, cost-benefit analyses indicate the programs are no more expensive, and in some instances less expensive, than prison. There is a range of other courts and programs particularly focused on dealing with mental health concerns, family violence and Indigenous defendants. These courts have been less comprehensively evaluated and what evaluations there have been do not consistently point to reduced recidivism (see King et al 2009).

In most cases, specialty court programs deal with a small number of defendants. In particular, models such as resource-intensive drug courts tend to be focused in metropolitan areas and access is therefore restricted to urban defendants. Thus, regional and rural defendants may face disadvantage due to the comparative lack of appropriate beai services. Mainstreaming the principles of problem-oriented justice or mainstreaming specific programs or practices may promote more equal access to court innovations for a greater proportion of defendants (Gray 2008). This may also have significant organisational advantages (Cannon 2007).

This paper presents the key features of problem-oriented justice and examines three challenges associated with these approaches and attempts at mainstreaming, namely, promoting equity, resourcing issues and the role of the judicial officer.

Key features of problem-oriented justice

Problem-oriented courts act as a 'hub' to connect various 'spokes'- such as drug and alcohol treatment agencies, communitybased corrections, probation services and domestic violence agencies- forming a holistic and integrated approach (Blagg 2008). There are significant differences in the structure and governance of such courts and programs around Australia but the following are common features:

* case outcomes- working on tangible outcomes for defendants, victims and society

* system change- seeking to re-engineer how government systems respond to problems, such as drug and alcohol dependence and mental illness

* judicial monitoring- active use of judicial authority to solve problems and change defendants' behaviour

* collaboration- engagement of government and non-government partners (eg social service providers and community groups) in reducing the risks of re-offending

* non-traditional roles- this may include altering aspects of the adversarial court process, as well as ensuring defendants play an active role in the process (see Berman & Feinblatt 2001 ; Freiberg 2001 ; King et al 2009; Popovic 2006).

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