Judging in a Therapeutic Key: Therapeutic Jurisprudence and the Courts
48 Criminal Law Quarterly 267 (2003).
There is growing worldwide interest in the twin concepts of problem-solving courts and therapeutic jurisprudence. Over the last fifteen years, courts in the United States have been experimenting with new ways to deliver justice. Drug treatment, domestic violence and mental health are just three examples of problem-solving courts that have developed in response to this demand for change. These specialized courts have been greatly assisted by the concept of Therapeutic Jurisprudence. The potential impact of TJ (as it is called by its supporters) extends far beyond the limited range of problem-solving courts. The TJ notion of judges as “healing agents” has the potential to permanently impact the way business is conducted in the courtrooms of this country. TJ represents a paradigm shift in the traditional concept of the judge as a neutral arbitrator. How does this changing role impact on our courtrooms and what are the risks involved? These and other critical questions have been waiting for a dispassionate and analytical analysis.
This is where Professors’ Bruce Winick and David Wexler’s book “Judging in a Therapeutic Key” proves so helpful. The book is divided into two parts. The first is a compilation of articles, written by judges and other practitioners, describing a variety of problem-solving courts. The book then provides an explanation of the TJ concept and how judges can utilize the principles of TJ, regardless of whether they are presiding in a specialized court. The second part of the book is also a compilation of articles, written by experts in the field and provides a blueprint for utilizing Therapeutic Jurisprudence in the courtroom.
There is much to commend this book to a wide audience. It does far more than provide an academic underpinning for TJ; it provides practical advice for the practitioner. I particularly appreciated the section entitled “Interpersonal Skills and the Psychology of Procedural Justice.” One portion written by Michael Clark M.S.W. gives helpful suggestions to judges who wish to employ TJ techniques in their courtrooms. He discusses four factors that research has shown is responsible for motivating behavioural change and suggests how judges can use these factors to empower the offender.
Equally relevant for judges is a section entitled “Sparking Motivation and Reducing Perceived Coercion.” This section includes a very insightful article by Professor Winick on “The Judge’s Role in Encouraging Motivation for Change.” He explains in detail how judges can act as “change agents” including the dos and don’ts of interacting with offenders. He also unties the tricky knot of whether TJ is coercive and in so doing answers critics who contend that all treatment must be voluntary.
Although judges will find much to interest them, the book is also well worth reading if you are not presiding in court. Addiction counsellors, defence counsel and crown attorneys attached to problem-solving courts will be interested in sections entitled “Facilitating Motivation to Change,” and “Enhancing Compliance.” These and other articles in Part II, provides practitioners with practical suggestions to assist in changing behaviour.
While there is much to applaud in the book, there is one unfortunate shortcoming. This is principally an American book, edited by American academics about U.S. courts. As such it suffers from a lack of international context. There are after all problem-solving courts in many other jurisdictions, including Canada. While these courts are noted in the Reference section of Part I, there is no acknowledgement of their role in the development of therapeutic judging. This is unfortunate because examining differences in approach might have been helpful to the editors in their analysis of problem-solving courts and even be of some interest to their American readers.
On balance however, this book is an important contribution to the jurisprudence on Therapeutic Jurisprudence and problem-solving courts and will appeal to anyone who works in this area.
