Therapeutic Jurisprudence and Problem Solving Courts

I. 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. …