Linking Courts and Elders

By Rothman, Max B.; Dunlop, Burton D. | Aging Today, September/October 2004 | Go to article overview

Linking Courts and Elders

Rothman, Max B., Dunlop, Burton D., Aging Today

"When you enter the courthouse, you enter a foreign country!"

-Fay Hewitt, Director

Elder Justice Center

Palm Beach, FIa.

"Most elders "don't know the language!"

-Muriel Skelly, Director

Self-Help Center

Reno, Nev.

Because of the importance of understanding more about the effects of demographic aging on the judiciary in the United States, we recently conducted a national study at Florida International University's Center on Aging, in North Miami, to ascertain how courts are addressing complex issues often presented by older people, situations that can reduce court efficiency and the realization of justice. The purpose of the research was to analyze whether and how courts , provide effective access to justice, in both civil and criminal jurisdictions. Furthermore, we sought to assess how courts identify and remove barriers within the system and how they develop or enhance linkages between elders and the courts, as well as with health, mental health and social service systems in their communities.

Although elderlaw has emerged as an important specialty area for lawyers, we know little about how courts are preparing for seeing more older people in the courthouse. The more complex and varied circumstances elders bring with them may represent an underlying cause of why older people become engaged in the courts in the first place, particularly in criminal cases. This situation raises the policy concern of whether courts can identify these issues in appropriate situations and mobilize services to help address them.


It is instructive to couch this analysis in the context of current trends in judicial philosophy and administration. Therapeutic jurisprudence is a recently developed approach asserting that "the law itself can be seen to function as a kind of therapist or therapeutic agent. Legal rules, legal procedures and the role of legal actors . . . constitute social forces that, like it or not, often produce therapeutic or antitherapeutic consequences," according to two of the primary developers of the concept, David E. Wexler and Bruce J. Winnick, in Law in a Therapeutic Key: Developments in Therapeutic Jurisprudence (Durham, N.C.: Carolina Academic Press, 1996).

Although primarily applied in criminal cases, therapeutic jurisprudence is a lens of underlying concepts that can identify issues beneath the surface in appropriate cases, as well as address them within the judicial context. As a philosophy, then, therapeutic jurisprudence is particularly relevant in situations involving substance abuse, mental illness, dementia and family breakdown.

Specialized or problem-solving courts, such as drug courts, mental health courts, domestic violence courts, family courts and community courts, are primary examples of courts guided by therapeutic jurisprudence. They try to address root causes or underlying problems, not just symptoms, behind repeated court appearances or convictions.

Given an underlying theme of partnership with community service providers, a resolution passed in 2000 by the Conference of Chief Justices and the Conference of State Court Administrators called for further study of the principles behind these courts to assess their potential for tackling other issues.

In recent years, trial court performance standards initiated by the Bureau of Justice Assistance and the National Center for State Courts have been tested in selected jurisdictions. They focus on the goals of state courts concerning access to justice, expeditious and timely action, equality, fairness, integrity, independence, accountability, and public trust and confidence. Each of these areas is very important in the context of older people and should be further refined to reflect specific issues affecting them. Additionally, courts over the last two decades have studied gender and racial or ethnic bias in the courtroom, generating constructive recommendations that affect all aspects of judicial administration. …

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