Black, White or Grey: Therapeutic Jurisprudence and Solution-Focused Courts
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Transcript of Black, White or Grey: Therapeutic Jurisprudence and Solution-Focused Courts
Black, White or Grey:Therapeutic Jurisprudence and Solution-Focused Courts
Hon. Peggy Fulton HoraJudge of the Superior Court of California (Ret.)Community Legal Centres Tasmania14-15 November 2013
Judge Sonia Sotomayor, a judge with “empathy” and “heart.”
“The safe thing to do is to sit on the bench and administer justice. The risky thing to do is to balance mercy with justice, compassion with rules.” Judge Juanita Stedman
Therapeutic Jurisprudence Can we reduce
the anti-therapeutic consequences
Enhance the therapeutic ones
Without subordinating due process and other justice values?Slobogin, Christopher, “Therapeutic Jurisprudence: Five Dilemmas to Ponder,”
1 Psychology Public Policy and the Law 193 (1995)
Therapeutic Jurisprudence (TJ) in the Justice Setting
Can we enhance the likelihood of desired outcomes and compliance with judicial orders by applying what we know about behavior to the way we do business in court
Comprehensive Law Movement1. Seeks to maximize emotional,
psychological and relational wellbeing of those involved with legal matters
2. Focuses beyond strict legal rights,
responsibilities, duties, obligations and entitlementsDaicoff, Susan, “Law as a Healing Profession: The ‘Comprehensive Law Movement’,”
6 Pepperdine Dispute Resolution Law Journal 1 (2006)
Collaborative Judges
Judges believe they can and should play a role in the problem-solving process
Outcomes matter--court is not just based on a process and precedent
Adelaide Thinker in Residence
Adapted from Judge Judith S. Kaye, Former Chief Judge, New York
Collaborative Courts
Recognize the therapeutic potential of the court’s coercive powers
Finds “Judicial Leverage” is an appropriate tool
Adelaide Thinker in Residence
Collaborative Change
Courts
Probation, CPS, &
Corrections
Treatment&
Intervention
P-S Principles and Methods1. Reduce recidivism in criminal
cases2. Save incarceration and other
costs of social services, e.g., foster care
3. Have great public support4. High participant satisfaction
(procedural justice)5. High judicial satisfaction
What’s in a name?
Drug court Drug treatment court Sobriety court DWI court Healing-to-Wellness court Family treatment court Collaborative court (CA) Non-Adversarial Justice (HI)
Solution-Focused Courts in Australia
The processes the court uses to develop solutions--therapeutic, inclusive of participants and the court team--and in the concept of the solution that is being sought--addressing underlying issues and promoting an ability to lead a constructive, happy and law-abiding life in the community.
Michael King,“Solution-Focused Judging Benchbook,” Monash U. ,Melbourne AU (2009)
Shared Principles of Collaborative Courts (CA) Problem-solving focus Proactive judicial role Less adversarial, team approach Integration of tx and social services Enhanced access to information
Ongoing judicial supervision Use of sanctions and incentives Direct interaction between litigants
and judgeCommunity outreach
Adapted from “Components of Collaborative Justice Courts,” Judicial Council of California, Administrative Office of the Courts, http://www.courtinfo.ca.gov/programs/collab/background.htm
“Tough on Crime”
State prison population up 700% over 1970-2010
Three Strikes in California Violent felony “Serious” felony Third strike = any felony including
“wobblers”
25 years to life
Modified last year. Change supported by prison guards’ union
When jail is the only answer:
U.S. jail and prison population is 2.3 million as of 2008
Four times population of Tasmania
5% of the world’s population; 25-50% prisoners
“Life After Prison Can Be Deadly, a Study Finds,” The New York Times, Jan. 11, 2007 p. A23
“Inmate Count in U.S. Dwarfs Other Nations’,” The New York Times, April 23, 2008 p. 1
“U.S. Prison Population Rises Despite a Drop in 20 States,” NYTimes Dec. 9, 2009 p. A22
1:133 Americans incarcerated
In 2009, 5.1 million
(1: 45) adults in the United States—was under some form of criminal justice supervision in the community
Disparate Impact
1:4 young, African American men incarcerated, on parole or probation
91% of Louisiana prisoners serving LWOP for non-violent crimes are African American
Largest mental hospital in U.S.? Los Angeles County Jail with 3,000 MI
inmates every day
Earley, Pete, Crazy: A Father's Search Through America's Mental Health Madness (Putnam, 2006)
Inmates with mental illness 30% of California’s prison population
has a mental illness About the population of Darwin Prison costs in California U.S.$8.6
billion annually
Tasmanian prisoners? They are
overwhelmingly young, male, poorly educated, unemployed and have high rates of mental illness, substance abuse, disability and chronic disease.
About 1,700 people per year
Australian Institute of Criminology Drug Use Monitoring in Australia
Arrestees with “heavy alcohol” abuse (>5 drinks/day) ¾ men and 2/3 women
Alcohol abusers also tested positive for other drugs (65%) and about ¼ (23%) tested positive for two or more drugs
At time of arrest 48% of offenders were positive for drugs and 15% were looking for drugs
Tasmanian prisoner profile >60% of those entering prison identify
alcohol and other drugs as a significant contributor to their offending
~75% of prisoners have a substance abuse and co-occurring mental health disorder
Ten separate prison admissions is not uncommon
Dr. Frances Donaldson, Risdon Prison Clinic
ATOD use + MH problems =
98.5%of Tasmanian prisoners
Correctional Primary Health Services
Cost of prison in Tasmania
$307 per day $112,000 per year per
prisoner
Daily costsRISDON PRISON $307/DAY
HOTEL GRAND CHANCELLOR $250/DAY
Risdon Prison $307/day Henry Jones Art Hotel $289/day
Disproportionate impact
Indigenous population 13-15% in prison
General population 3.5%
U.S. drug courts credited with reducing the imbalance of African Americans in the prison population
What’s the Answer?
“We need to incarcerate the offenders we are afraid of and treat the ones we are just mad at.”
Recidivism and drugs
“…[E]xpectation of post-release drug use was a significant predictor of re-incarceration”
Payne, Jason, Macgregor, Sarah, McDonald, Haley, “Prevalence and Issues Relating to Cannabis Use among Prison Inmates: Key Findings from Australian Research Since 2001 ,National Cannabis Prevention and Information Centre (NCPIC), 2013.
Outcomes of incarceration Expensive Ineffective Not a general
deterrent More than 1/3
(39%) of Australian prisoners re-arrested and re-incarcerated 2 years after release
Conversation is changing The proportion of Australians who agree that
“stiffer sentences are needed” has declined
Little or no confidence in the prison system’s ability to:
a) Rehabilitate prisoners (88%)b) Punish (59%)c) Teach prisoners skills (64%)
L.Roberts, D Indermaur, What Australians think about crime and justice results from the 2007 Survey of Social Attitudes, Australian Institute of Criminology (AIC) 2007
Costs of misuse
Tangible costs of alcohol and illicit drugs in AU =
AU$19 Billion
DJ Collins, HM Lapsley, The costs of tobacco, alcohol and illicit drug abuse to Australia society in 2004-05, Commonwealth of Australia, 2006
Little change in prison
EXCEPT: Compulsory Drug Treatment
Correctional Centre Focuses on treatment and recovery 2006 NSW Drug Court, Justice Health
Services and Dept. of Corrective Services
Reintegration planning
Supportive environment Clean and sober housing Outpatient chemical dependence
treatment Ancillary services
Addiction “When you can
quit, you don’t want to and when you want to, you can’t”
Casper (Geoffrey Rush)in “Candy” (2006)
Solution-Focused Courts AU
International Perspective on Drug Courts
Australia England Panama Canada El Salvador Scotland Ecuador Ireland Mariturius New Zealand Netherlands Costa Rica Chile Israel Argentina Italy Trinidad and Tobago Caribbean Dominican
Republic Belgium Bahamas Macedonia Japan Brazil Vietnam Norway Wales Mexico
Planned
UN Office of Drug Control
13 Key Principles for Court-directed
Treatment and Rehabilitation Programmes
Drug Treatment Courts AU First in 1999 Parramatta NSW 2 more in NSW 4th in planning stage in Wollongong
In all states or territories except QLD
2007 Tasmania – Court Mandated Drug Diversion Program
Other solution-focused courts Mental health list/courta) First 2000 Adelaideb) Tasmania - Hobart, Launceston, Burnie
and Devonport Aboriginal sentencing a) Nunga Court in Adelaideb) Koori Court in Melbourne Youth treatment court ACT Neighbourhood Justice Centre, Victoria
Family Drug Treatment Court VICJanuary 2014
Specialised Youth Justice Court PilotHobart
Improved timeliness to finalisation of youth justice matters
Encouragement of more consistency in the court’s decisions
Greater development and application of expertise in youth justice matters
Better coordination of youth justice support services to the court
Increased collaborative approaches between the agencies involved in youth justice.
Achieved all but first goal Will expand to Launceston in 2014 No Family Treatment Court in Tasmania
Two steps forward, … NSW closed Youth Drug
and Alcohol Court (July 2012)
Queensland closed Murri Court, Special Circumstances and Drug Treatment Courts
(But allowed “Indigenous Sentencing List “)
Claimed fiscal concerns Drug Court in QLD saved
AU$6 million year
“Mr Cranny said the court was attempting to fill the gap of the drug and specialised courts, which had been scrapped by the Newman Government.”
Attorney-General Jarrod Bleijie said the program was not offered to serious offenders.
"We are an unashamedly tough Government, but we also support our most vulnerable,'' Mr Bleijie told The Courier-Mail.
Support from the right “Conservatives favor voluntary drug
courts because they provide options for those people who are sincerely committed to taking responsibility to reform their lives.”
“The reduced recidivism rates that result from the use of drug courts benefit public safety, but drug courts can also reduce the burden of incarceration on state budgets because they cost less—between $2,500 and $4,000 annually per offender.”
Drug Treatment Courts in the U.S.
2,833 Drug Courts in U.S. (1-10-13)
321Fami
ly
127 Tribal
129Stat
eVets
221DWI600+ hybri
d
5Feder
alVets
459Juveni
le1,474Adult
39 Co-
Occurring
30 Re-
Entry
5Campu
s
25 FederalDistrictCourts
P-SCourts
Re-entry
Gun
Community
MentalHealth
DVProsti-tutionParole
ViolationHomeless
Veteran
IntegratedTx
Truancy
ChildSupp
Gambling
~1,300 Other P-S Courts
Characteristics
82% criminal courts are post-plea
140,000 participants nationwide
1.2 million eligible but not served
Efficacy – Adult Drug CourtReduce substance use by >35%
Reduce crime by 50%Reduce recidivism -- 75% graduates are arrest free; crime reduction remains >14 years
Cost Savings
11 meta analyses show:$1 = $2.21 - $3.36 savingsUp to $27 per dollar invested if all costs are counted
Family Drug Court saves $10-15,000 per child
What can you do?
1. Develop partnerships with the drug diversion court and mental health list
2. Support and promote their work3. Encourage the development of other
solution-focused courts:a) Supreme court, post conviction, more
serious crimesb) Community supervisionc) Drink/drug driving courtd) Family treatment courte) Integrated youth court
Comments? Questions?