Reconfiguring Crime Control and Criminal Justice: Governmentality and Problem-Solving Courts
Sirotich, Frank, University of New Brunswick Law Journal
Problem-solving courts or special therapeutic courts have proliferated in the last decade. They have emerged across a number of countries such as Australia, Canada, the United Kingdom and the United States. (1) Courts falling under the rubric of problem-solving courts include community courts, drug courts, and mental health courts. Though they vary by case type, they share a number of common elements including the application of judicial authority and the threat of criminal sanctions to compel a defendant's compliance with treatment or a psychosocial intervention over a period of time. Rooted in the principles of therapeutic jurisprudence, a philosophy concerned with producing therapeutic effects for individuals involved in the legal process, these courts link accused to treatment and then supervise this connection to promote treatment compliance. By participating in treatment, accused may forego criminal processing or sentencing or may be accorded a reduction in criminal sanctions. It is expected that treatment engagement will reduce criminal behaviours and the likelihood of future interactions with the criminal justice system. (2)
This article utilizes the concept of governmentality as conceived by Foucault and subsequently developed by others to consider the significance of these courts as emerging practices which define crime control policy and the administration of criminal justice. Governmentality refers to the point of contact between institutional technologies of regulation by state and non-state actors aimed at adjusting the conduct of individuals or populations and techniques of self-regulation through which individuals bring themselves into line with socially accepted aspirations and identities. In the following pages, the concept of governmentality will be employed to track how the regulation of crime has been reproblematized and the governance of criminal justice newly rationalized with the emergence of problem-solving courts. The governmentality analytic will also be employed to examine the emergence of the new technologies of governance utilized by these courts and to consider their significance for the policy areas of crime control and criminal justice. It is suggested that the proliferation of these courts provides evidence of the ascendance of an economic rationality behind the governance of crime and criminal justice. Further, these courts represent a significant permeation of the discourses of human service disciplines into the discourse of criminal justice. Taken together these changes signal a significant alteration in the substance and nature of criminal justice and in the governance of crime.
Problem-solving Courts, Therapeutic Jurisprudence and Crime Control
Problem-solving courts, also known as treatment courts, vary in their organization by jurisdiction, by the type of problem they seek to address and by the type of offender they serve. However, most share five common characteristics: (1) the court concerns itself with a broadened range of non-legal problems such as the psychosocial and treatment needs of accused; (2) the court makes use of its authority to solve these non-legal problems; (3) the court takes into consideration and endeavours to influence outcomes that go beyond the application of the law; (4) the court attempts to advance greater collaboration between state and non-state entities to attain common aims; and (5) the court employs judicial authority to motivate accused to accept treatment and to monitor their adherence to treatment. (3)
Many of these specialty courts are based on the principles of therapeutic jurisprudence, which is an interdisciplinary approach to the application of law. Specifically, therapeutic jurisprudence is concerned with reducing the antitherapeutic effects of legal rules and procedures, and increasing their therapeutic potential. Though therapeutic jurisprudence and problem-solving courts developed separately from one another, (4) they share similar aims and can be seen to have a symbiotic power/knowledge relationship. …