Therapeutic Jurisprudence & the Emergence of Problem-Solving Courts

By Rottman, David; Casey, Pamela | Corrections Forum, March/April 2000 | Go to article overview

Therapeutic Jurisprudence & the Emergence of Problem-Solving Courts


Rottman, David, Casey, Pamela, Corrections Forum


Individual judges, trial courts, and entire State court systems are adopting a new, problem-solving orientation to their work, one well removed from the traditional model of the "dispassionate, disinterested magistrate. "'In doing so, courts, in many but not all respects, are taking a path previously cut by other components of the criminal justice system, where a problem-solving orientation first emerged as a reaction to the "management-dominated" concept of police reform of the 1970's and 1980's. In the new model, "problem" is defined expansively to include "a wide range of behavioral and social problems that arise in a community." A series of executive sessions convened by the Kennedy School of Government refined this orientation into a community strategy of policing based on the "establishment of effective problem-solving partnerships with the communities they Police. Community policing, in turn, helped to shape the strategies of community prosecution, probation, and corrections.

Courts also are establishing problem-solving partnerships, but, thus far, lack a coherent strategy comparable to community policing. Various approaches are being tested across the country following a variety of principles, including those of therapeutic jurisprudence, which explore the role of the law in fostering therapeutic or antitherapeutic outcomes. Therapeutic jurisprudence attempts to combine a 11 rights" perspective-focusing on justice, rights, and equality issues with an "ethic of care" perspective focusing on care, interdependence, and response to need.

Restorative justice and community justice are related approaches to problem solving that offer the field of therapeutic jurisprudence potential strategies for achieving therapeutic outcomes. In addition, court and community collaboration is a vehicle for implementing therapeutic jurisprudence. (See "Achieving Court and Community Collaboration, ") These emerging partnerships are a response to forces pushing and pulling courts toward a more problem-solving and community-focused orientation.

The Road to Therapeutic Jurisprudence

The main push for this change came from the societal changes that placed courts in the frontline of responses to substance abuse, family breakdown, and mental illness. Courts cannot restrict the flow of such problems into the courtroom, and often such problems stand in the way of effective adjudication of cases. Consequently, courts are struggling to create appropriate dispositional outcomes, including securing treatment and social services.

The push provided by rising caseloads coincided with demands from the public and individual communities for a more responsive and involved judiciary. In recent decades, the courts of most urban and many rural areas have become distant from the public, both physically and psychologically. The public lacks a sense of connection to the court system and views courts as irrelevant to solving the problems of greatest concern to most citizens the breakdown of social and family support networks. Public opinion surveys indicate considerable dissatisfaction with the accessibility and relevance of the courts and low levels of trust and confidence in the judiciary.

Judges and courts also were pulled rather than pushed toward a problem-solving, proactive orientation. One pull came from a new model for judging that reshapes the nature of the judicial process across the board. The Commission on Trial Court Performance Standards developed and published in 1990 a set of standards, several of which are relevant to this discussion. First, one standard recognizes an obligation on the part of courts to anticipate and adjust their operations to meet new conditions. Second, three standards hold courts responsible for their standing with the public. These standards acknowledge that objectively measured high performance is not enough if the public fails to perceive that high performance.

Therapeutic Jurisprudence and Its Application

Therapeutic jurisprudence is one source of guidance as the judiciary thinks through the philosophical and practical issues associated with these changes in their role and public expectations. …

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