Therapeutic jurisprudence and problem solving courts.

• Author: Winick, Bruce J.
• Position: Special Series: Problem Solving Courts and Therapeutic Jurisprudence

1. PROBLEM SOLVING COURTS: A TRANSFORMATION IN THE JUDICIAL ROLE

   In the past dozen or so years, a remarkable transformation has occurred in the role of the courts. (1) Courts traditionally have functioned as governmental mechanisms of dispute resolution, resolving disputes between private parties concerning property, contracts, and tort damages, or between the government and an individual concerning allegations of criminal wrongdoing or regulatory violations. In these cases, courts typically have functioned as neutral arbiters, resolving issues of historical facts or supervising juries engaged in the adjudicatory process.

   Recently, a range of new kinds of problems, many of which are social and psychological in nature, have appeared before the courts. These cases require the courts to not only resolve disputed issues of fact, but also to attempt to solve a variety of human problems that are responsible for bringing the case to court. Traditional courts limit their attention to the narrow dispute in controversy. These newer courts, however, attempt to understand and address the underlying problem that is responsible for the immediate dispute, and to help the individuals before the court to effectively deal with the problem in ways that will prevent recurring court involvement.

   The new courts, increasingly known as problem solving courts, (2) are specialized tribunals established to deal with specific problems, often involving individuals who need social, mental health, or substance abuse treatment services. These courts also include criminal cases involving individuals with drug or alcoholism problems, mental health problems, or problems of family and domestic violence. The juvenile court is the forerunner of these specialized courts; it was started in Chicago in 1899 as an attempt to provide a rehabilitative approach to the problem of juvenile delinquency, rather than the punitive approach of the adult criminal court. (3) The modern antecedents of this movement are the drug treatment courts, founded in Miami in 1989. (4)

   The drug treatment court was a response to the recognition that processing nonviolent drug possession charges in the criminal courts and then sentencing the offender to prison did not succeed in changing the offender's addictive behavior. (5) Criminal court dockets had become swollen with these drug cases, and the essentially retributivist intervention of the criminal court and prison seemed to do little to avoid repetition of the underlying problem. (6) The result was a "revolving door effect in which [drug offenders typically] resumed their drug-abusing behavior after [being] released from prison." (7) Instead of relying on the traditional criminal justice approach, the drug treatment court emphasized the offender's rehabilitation, and placed the judge as a member of the treatment team. (8) Offenders accepting diversion to the drug treatment court, or pleading guilty and agreeing to participate in the drug treatment court as a condition of probation, agreed to several conditions; to remain drug-free, "to participate in a prescribed course of drug treatment, to submit to periodic drug testing in order to monitor their compliance [with the treatment plan], and to report [periodically] to court for judicial supervision of their progress." (9)

   These court's success in helping many addicts to end their addiction and to avoid re-involvement with the criminal court led to a tremendous growth in the number of drug courts nationally and internationally, with the result that, as of December 2000, there were 697 such courts in America, and many more in the planning stage. (10) Indeed, there now are juvenile drug treatment courts, which specialize in juveniles with drug abuse problems, and dependency drug treatment courts, that deal with families with drug problems that are charged with child abuse or neglect. (11)

   Other specialized treatment courts or problem solving courts, as they are now known, include domestic violence courts, (12) which attempt to protect the victims of domestic violence, to motivate perpetrators of domestic violence to attend batterer's intervention programs, and to monitor compliance with court orders and treatment progress. (13) More than two hundred domestic violence courts now exist. (14)

   Reentry courts are another form of problems solving courts. These courts were designed to assist offenders that are released from prison into a form of judicially-supervised parole, to effect a successful integration into the community. (15) A recently proposed application of the reentry court model deals with sex offenders and attempts to manage the risk of their reoffending through close supervision and monitoring through the use of polygraph examinations. (16)

   Another example is the dependency court, a branch of family court that deals with issues of child abuse and neglect. (17) This is a civil court that adjudicates whether child abuse or neglect has occurred, and when it has, it attempts to provide services designed to avoid its repetition. (18) When such services appear fruitless, the dependency court works to terminate parental rights and arrange foster care for the child. (19)

   Teen court, sometimes known as youth court, is another problem solving court. (20) This court deals with cases involving juveniles charged with minor offenses. (21) In addition, it allows other juveniles who have been through the teen court process, and who have received special training, to play the role of prosecutor, defense attorney, or member of the jury. (22) This special process provides the juveniles charged with minor offenses with the ability to see their behavior from the victims' or society's perspective and to receive an inoculation of empathy training. (23)

   One of the most recent types of problem solving courts to emerge is the mental health court, (24) started in 1997 in Broward County, Florida. (25) The mental health court is a misdemeanor criminal court designed to deal with people arrested for minor offenses whose major problem is mental illness rather than criminality. (26) This is a revolving door category of patients who are periodically committed to mental hospitals where they are treated with psychotropic medication. (27) Due to the use of medication, they experience sufficient improvement, which allows hospitals to discharge them, but, when they are back in the community, they fail to take their medication. (28) As a result, they frequently decompensate, sometimes committing minor offenses that result in their arrest. (29) Mental health courts seek to divert them from the criminal justice system and to persuade them to voluntarily accept treatment while in the community. (30) In addition, they link them with treatment resources, and provide social service support and judicial monitoring to ensure treatment compliance. (31)

   All of these courts grew out of the recognition that traditional judicial approaches have failed, at least in the areas of substance abuse, domestic violence, certain kinds of criminality, child abuse and neglect, and mental illness. These are all recycling problems, the reoccurrence of which traditional interventions did not succeed in bringing to a halt. The traditional judicial model addressed the symptoms, but not the underlying problem. The result was that the problem reemerged, constantly necessitating repeated judicial intervention. All these areas involved specialized problems that judges of courts of general jurisdiction lacked expertise in. Moreover, they involved treatment or social service needs that traditional courts lacked the tools to deal with.

   In response to these failures, courts decided that they needed new judicial approaches. These new approaches involve a collaborative, interdisciplinary approach to problem solving where the judge plays a leading role. Not only is the judge a leading actor in the therapeutic drama, but also the courtroom itself becomes a stage for the acting out of many crucial scenes. On this stage, the judge also assumes the role of director, coordinating the roles of many of the actors, providing a needed motivation for how they will play their parts, and inspiring them to play them well.

   The new problem solving courts are all characterized by active judicial involvement, and the explicit use of judicial authority to motivate individuals to accept needed services and to monitor their compliance and progress. They are concerned not merely with processing and resolving the court case, but in achieving a variety of tangible outcomes associated with avoiding reoccurrence of the problem. Problem solving courts generate the need for new kinds of information not typically collected by courts, and, in the process, have significantly improved the quality and quantity of information needed to understand the problem and deal more effectively with it. (32) They play an educative role in raising community consciousness about the problem in question, its causes, and the resources that courts need to resolve it. (33) In addition, they become advocates for the populations they deal with and for the increased allocation of community resources needed to resolve their problems. (34) Finally, they work closely with community agencies and treatment providers, and, in the process, monitor and improve their effectiveness. (35)

   Problem solving courts represent a significant new direction for the judiciary. These judges seek to actively and holistically resolve both the judicial case and the problem that produced it. (36) They extend help to people in need by connecting them to community resources, motivating them through creative uses of the court's authority to accept needed services and treatment, and monitoring their progress in ways that help to ensure their success. (37) By targeting recurring problems that seem to be the product of behavioral, psychological, or psychiatric difficulties or disorders, and intervening to prevent...