A Culture of Caring

By Costello, Don Owen | Judicature, May/June 2004 | Go to article overview

A Culture of Caring


Costello, Don Owen, Judicature


A culture of caring Judging in a Therapeutic Key: Therapeutic Jurisprudence and the Courts, edited by Bruce J. Winick and David B. Wexler. Carolina Academic Press. 2003. 352 pages. $45.

A judge and a group of social scientists were discussing how to improve delivery of substance abuse treatment to young law violators. All agreed that this and similar problem-solving justice efforts require collaboration among multiple community leaders, including judges. There was divergence, however, as to the parameters of judicial involvement. The social scientists voiced frustration over perceived judicial apathy, with one asking, plaintively, "Why is it so hard to get the judges to sit down in our sandbox and play with us?"

This is a common refrain. The view is often expressed that if only judges would come down off their benches and work elbow-to-elbow with others, social, cultural, and health problems that drive our court dockets could be ameliorated, and there would be less conflict. Increasingly, public trust and confidence in our courts depend upon judges' capacity to fulfill this expectation.

Many judges have accepted this challenge. We are uniquely qualified to succeed at it. We are problem solvers. We are possessed with both the authority and the ability to convene, teach, inspire, and guide others. We are not omnipotent, though, and we cannot solve causative problems acting alone. A number of judges have proven that engaged problem solving-often referred to as outreach-can be practiced while preserving the court's core independence, neutrality, and impartiality.

But even for these successful practitioners, outreach can be risky. The judicial oath, ethical considerations, juristic traditions, and multiple local factors circumscribe it. A judge can connect with nonjudges, but to what purpose and degree? That question lays the foundation of judicial trepidation, perceived as apathy by others. Trepidation discourages some judges from acting upon their desire to get involved and causes others to retreat after initial involvement due to burnout, lack of peer support, and public expectations that cannot be met. Few have the tenacity to stick with it. Accordingly, judicial outreach remains a nascent practice, driven more by courage, good intentions, and intuition than by precedent.

Into this context comes an excellent and informative work, Judging in a Therapeutic Key: Therapeutic Jurisprudence and the Courts, edited by Bruce J. Winick and David B. Wexler. Through a series of thoughtful articles by respected judges, academics, and other researchers, as well as their own insightful commentary and well-researched articles, the editors superbly make a case for a change in jurisprudential culture to a culture of care that requires methodical consideration of how the law impacts psychological well being. This culture is called therapeutic jurisprudence.

The book shows how judges influence and are influenced by this culture, and presents numerous examples of how therapeutic jurisprudence can better serve litigants and communities while rejuvenating judges and others who serve them. Part I, entitled "The New Judicial Approaches," includes articles describing therapeutic approaches specialized courts and court dockets employ for adult drug treatment, juvenile drug treatment (in both delinquency and dependency cases), sentencing circles, teen- and youth-peer justice, domestic violence, mental health, domestic violence, and reentry. Story telling and first-hand observations by judges and other practitioners are featured and are interspersed with editors' syntheses and commentary, which identify trends and common themes. Also included in Part I is Greg Berman and John Feinblatt's article, "Problem-Solving Courts Generally," which summarizes recent developments in court processes that deal with social problems.

Another highlight is "Judging for the New Millennium," a call-to-arms by Judge William G.

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