Problem-Solving Courts, Therapeutic Jurisprudence and the Constitution: If Two Is Company, Is Three a Crowd?

Article excerpt

[Court costs, resource-intensive trials, booming prison populations and the obduracy of recidivism rates all present as ugly excesses of the criminal law adversarial paradigm. To combat these excesses, problem-solving courts have evolved with an edict to address the underlying issues that have caused an individual to commit a crime. When a judge seeks to help a problem-solving court participant deal with issues like addiction, mental health or poverty, they are performing a very different role to that of a judicial officer in the traditional court hierarchy. They are no longer the removed, independent arbiter--a problem-solving court judge steps into the 'arena' with the participant and makes active use of their judicial authority to assist in rehabilitation and positive behavioural change. Problem-solving court judges employing the principles of therapeutic jurisprudence appreciate that their interaction with participants can have therapeutic and anti-therapeutic consequences. This article will consider how the deployment of therapeutic measures (albeit with good intention) can lead to the behavioural manifestation of partiality and bias on the part of problem-solving court judges. Chapter III of the Commonwealth Constitution will then be analysed to highlight why the operation and functioning of problem-solving courts' may be deemed unconstitutional Part IV of this article will explain how a problem-solving court judge who is not acting impartially or independently will potentially contravene the requirements' of the Constitution It will finally be suggested that judges who possess a high level of emotional intelligence will be the most successful in administering an independent and impartial problem-solving court.]


  I Introduction
 II Catharsis, Empathy and the Pygmalion Effect
    A Catharsis
    B Empathy
    C The Pygmalion Effect
III The Pitfalls
    A Countertransference
    B Emotional Contagion
 IV The Constitutionality of Problem-Solving Courts
  V Emotional Intelligence
    A Emotional Self-Awareness
    B Emotional Self-Regulation
 VI Conclusion


Berman and Feinblatt's traditional definition of a problem-solving court states that such a court seeks to 'address the underlying problems of individual litigants, the social problems of communities [and] the structural and operational problems of a fractured justice system.' (1) In Australia, drug courts, alcohol courts, mental health courts and domestic/family violence courts are all examples of problem-solving courts. (2) These courts have a forward-looking focus; an individual's past criminal conduct is not downplayed, but the problems that may have driven an offender's criminal behaviour are addressed in a more holistic fashion. According to King et al, the approach taken by problem-solving courts 'reflects a realisation by [traditional] courts and legislators that social problems may require social as well as legal solutions and that existing forms of judging need to be reconsidered.' (3) The ambitious scope of problem-solving courts places the spotlight on the role of the judicial officer who convenes the court. In a traditional adversarial court, the skills required of a judge include a good understanding of the law, an excellent grounding in the rules of evidence and sound organisational and presentation skills. A problem-solving court judge must possess these skills and more. If a problem-solving court judge is prepared to address the root cause of an individual's offending, they need to figuratively enter and understand the world in which that offending has occurred. By acknowledging that criminal behaviour is rarely a calculated act by a rational agent, a problem-solving court becomes well placed to address the 'story' behind the offending. (4) Whilst the problem-solving court judge is first and foremost an arbiter of fact and law, in this new environment a judge may also need to wear the hat of lawyer, sociologist, psychologist and even psychoanalyst. …