Therapeutic jurisprudence considers therapeutic and anti-therapeutic aspects of the law, the legal system and the roles of court and corrections actors. These presenters share how strategies have been successfully applied in YOUR DRUG COURT and at a Compulsory Drug Treatment Correctional Center in Sydney, Australia.

1. Problem-Solving Courts:
TJ and Procedural Fairness
Hon. Peggy Fulton Hora
Superior Court of California (Ret.)

2. The law is…
• … a healing profession

3. Problem-Solving Courts
• …focus on the underlying medical/social issues and
chronic behaviors of court users who have recurring
contacts with the justice system
• …apply promising practices and evidence-based
interventions from the behavioral sciences to
effectuate change
• …seek innovative solutions to complex social issues
(substance abuse, homelessness, mental health,
violence)

4. Problem-Solving Courts
• …focus on the underlying medical/social problems
and chronic behaviors of court users who have
recurring contacts with the justice system
• …apply promising practices from the behavioral
sciences to effectuate change
• …seek innovative solutions to complex social issues
(addictions, homelessness, mental health, violence)

6. P-S Principles and Methods
1. Reduce recidivism in criminal cases
2. Save incarceration and other costs of social
services, e.g., foster care
3. Have great public support
4. High participant satisfaction
5. High judicial satisfaction

7. 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
Adapted from Judge Judith S. Kaye, Chief Judge, New York

8. Collaborative Courts
• Recognize the therapeutic potential of the
court’s coercive powers
• Finds “Judicial Leverage” is an appropriate
tool

9. Collaborative Courts
• Recognize the therapeutic potential of the
court’s coercive powers
• Finds “Judicial Leverage” is an appropriate tool
• Address complex social issues
• Understand that collaboration assists with
continuum of care

10. Drug Treatment Courts
• DTCs emphasize alcohol and drug treatment
services. The two goals of these programs are to
reduce recidivism of drug-related offenses and to
create options within the criminal justice system that
tailor effective and appropriate responses for
offenders with drug problems.

13. Leadership
• The role of a leader is to empower others, help
others fix problems and serve others.
Brady & Woodward (2007)
• As the leader of the team, the judge is fully
committed to the drug court program, its mission
and goals.

14. Leadership, cont.
• Hold team-building meetings and focus on program
structure with the team
• Expect all team members to participate in staffing.

15. Who are Leaders?
• Plenty to do without a process that will be hard and
time-consuming
• Advantages distant, costs immediate
• Leaders are those “who can stand back and see the
payoffs, who are willing to take risks, and who are
willing to use their personal credibility and stock with
their peers to get this effort off the ground and keep
it going.”
McGarry, Peggy and Becki Ney, “Getting it Right: Collaborative Problem Solving for Criminal Justice,” U.S. Dept. of Justice, Nat’l Institute of
Corrections (June 2006) http://nicic.org/Downloads/PDF/Library/019834.pdf

16. Judicial Supervision
 Ongoing judicial supervision increases
the likelihood that the participant will
remain in treatment
 Regular status hearings are used to
monitor participant performance

17. High Performance Judges Know
“Effective trial courts are responsive to
emergent public issues such as drug
abuse…A trial court that moves
deliberately in response to emergent
issues is a stabilizing force in society and
acts consistently with its role of
maintaining the rule of law”
Bureau of Justice Assistance’s Trial Court Performance Standards, 1997

18. What does an effective judge know?
• What separates drug court judges from
traditional judges is training in addiction,
understanding how to motivate behavior
change, and simple empathy.
• William G. Meyer & A. William Ritter, Drug Courts Work, 14 FED. SENT’G REP. 179, 183-184 (2002).

19. Comprehensive Law Movement
 Seeks to maximize emotional, psychological and
relational wellbeing of those involved with legal
matters
 Focuses beyond strict legal rights,
responsibilities, duties, obligations and entitlements
Daicoff, Id.

20. THERAPEUTIC JURISPRUDENCE

21. TJ
• “…*T+he most prolific vector *of the Comprehensive
Law Movement], at least in academic and judicial
circles.
• “It has rapidly spread to all areas of the law and has
been enthusiastically adopted by American judges in
the form of ‘problem-solving courts’.”
Daicoff, Susan, “Law as a Healing Profession: The „Comprehensive Law Movement‟,”
6 Pepperdine Dispute Resolution Law Journal 1 (2006)

22. Therapeutic Jurisprudence…
“proposes the exploration of ways in which,
consistent with principles of justice, the
knowledge, theories, and insights of the
mental health and related disciplines can
help shape the law.”
Source: Wexler, DB and BJ Winick, eds. Law in a Therapeutic Key, Durham, NC; Carolina Academic Press, 1996
www.therapeuticjurisprudence.org

23. TJ’s Overlapping areas of Inquiry
1. Role of law in producing psychological dysfunction
2. Therapeutic aspects of the law
3. Therapeutic aspects of the legal system
4. Therapeutic aspects of judicial and legal roles
Wexler, Introducing Therapeutic Compliance Through the Criminal
Law, 14 Law & Psychol. Rev. 42 (1990)

24. The task of TJ
• Identify and ultimately examine empirically
relationships between legal arrangements and
therapeutic outcomes
• Law reform agenda: Minimize anti-therapeutic
consequences and facilitate achievement of
therapeutic ones
Drogin, Eric “Jurisprudent Therapy and Competency,”
28 Law & Psych. R. 41 (2004)

25. TJ’s Question
Can we enhance the
likelihood of desired
outcomes & compliance
with judicial orders by
applying what we know
about behavior to the way
we do business in court?

26. Jurisprudent Therapy
• Ensures people are helped in ways that obey,
complement, and further the goals of the law
• TJ is designed to ensure that the law does things to
help people
• It also results in more compliance with judicial orders
Drogin, Id.

27. • 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)

28. “Trumping”
• Legal rights such as due
process and equal
protection are never
“trumped” by therapeutic
concerns even though the
court’s action may be
anti-therapeutic

29. PROCEDURAL FAIRNESS/
PROCEDURAL JUSTICE

30. Procedural Fairness/Justice
• Posits that the manner in which justice is done is
just as important and the outcome
• “…bridges the gap that exists between familiarity
and unfamiliarity and the differences between each
person….”
• www.Proceduralfairness.org
• Burke, Kevin and Steve Leban, “Procedural Fairness: A Key Ingredient in Public Satisfaction,” Court Review
American Judges Association (2007)

31. Procedural Fairness
• Voice: the ability to participate in the case by
expressing their viewpoint;
• Neutrality: consistently applied legal principles,
unbiased decision makers, and a “transparency” about
how decisions are made;

32. Procedural Fairness, cont.
• Respectful treatment: individuals are treated with
dignity and their rights are obviously protected;
• Trustworthy authorities: authorities are benevolent,
caring, and sincerely trying to help the litigants—this
trust is garnered by listening to individuals and by
explaining or justifying decisions that address the
litigants’ needs.
Tom Tyler, “Why People Obey the Law” 22 (2006)

33. Fairness is Key
• People will accept an unfavorable ruling if they feel
the process is fair.
• People who win but who do not feel they were
treated fairly are unhappy with the procedure

34. Why do people accept court decisions?
Tom Tyler, Procedural Fairness, COSCA 2011

35. Willingness to accept decisions based upon
reason for being in court.

36. R-E-S-P-E-C-T
• Proactive trouble shooting
• Judge directly address progress
• Open courtroom
• All observed consequences
• Genuine, caring, consistent, and firm
Carrie J. Petrucci, "Respect as a Component in the Judge-Defendant Interaction in a Specialized Domestic
Violence Court that UtilizesTherapeutic Jurisprudence.“ CRIMINAL LAW BULLETIN
38:2 (2002)

37. • Active listening
• Rogerian approach
(warmth, empathy, and
genuineness)
• Shared respect

38. A New Perspective
The court system as
• an interdisciplinary
• problem-solving
• community institution
Dr. Alvan Barach, quoted by Bill Moyers in Healing and the Mind, 1993

39. Twenty years of P-S Courts 1989-2009
• “We’re moving out of
adolescence into a
point of maturity.”
• Dan Becker, Utah’s state court
administrator

40. NADCP Key Component #7 and United Nations
Office on Drugs and Crime Key Component #7:
Ongoing judicial interaction with each drug court
participant is essential
Tribal Healing-to-Wellness Courts Key Component
#7: Ongoing judicial interaction with each participant
and judicial involvement in team staffing is essential

41. Judges matter
Therapeutic jurisprudence posits:
• Does what a Judge says, and how he or she says it,
impact legal outcomes?
• Such as compliance, sentence completion,
recidivism
Procedural justice suggests:
• Defendants’ perceived fairness of the Judge can
make a difference in whether they complete their
sentences, and ultimately, whether they reoffend
EMT Associates, Inc. 06-12-2008 41

42. Judicial Communication Scale
• People feeling like they have been treated
fairly was the strongest predictor in court
attitudes
• Ethnicity of the observer (but not ethnic
match to judge & not for all judges)
• Professional discipline of the observer (law vs.
social work but not for all judges)
• Need for complex thinking (2 out of 4 judges)
• Authoritarianism (2 out of 4 judges)
Petrucci, Carrie, Ph.D., “Measuring Judicial Communication: A Therapeutic
Jurisprudence Perspective” 2008

43. Judge is most important factor
• 80% of participants say
they wouldn't have
stayed in drug court if
they did not appear
before a judge
Drug Court Clearinghouse, American U.
• Interaction and
delivery of response has
most impact

44. Drug Court Participant:
• “It’s a learning experience for me. You just
learn what to do. When you see somebody
doin’ right and they get patted on the back,
you think, ‘I want to be like that next time I
come.’ Or when you see someone get the
cuffs slapped on them, you thinking like, ‘Oh, I
ain’t going to do that. I don’t want to be that
person’.”
San Bernardino Drug Court participant focus group

45. Judicial Interaction
• One of the most important factors for DTC
• Judges’ interpersonal skills and ability to resolve legal
problems expeditiously and provide ready access to
services
• A single DTC judge increases compliance over
multiple judges presiding
• Drug Courts: The Second Decade NIJ Special Report OJP, USDOJ (June 2006)

47. Incentives & Sanctions
• After input from the whole team, the judge should
decide on incentives, sanctions and treatment
responses.
• The judge must stay abreast of research on
motivational interviewing and behavioral change
literature.
• The judge delivers a coordinated response to
participants in the courtroom.

48. Incentives and Sanctions
• Timely
• Consistent
• Certain
• Appropriate to hold litigant accountable, move
litigant toward desired outcome, protect public

49. Why sanctions?
• Purpose of sanctions is to keep them engaged in
treatment
• Use sanctions to promote sustained change

50. 5 Steps to Deliver the response
1. Explain the decision and the factors considered by
the team
2. Review severity of the participant’s substance
dependence
3. Note the behavior being responded to
4. How the behavior is important to their recovery
5. Why the particular sanction and magnitude were
selected
National Drug Court Institute, Incentives and Sanctions: Rethinking Court Responses to Client Behavior

51. Practice with a partner
Danny has been in DTC for 9
weeks. He once was clean
for 2 weeks. In staffing,
you find out he had a
positive test this week.
Your court requires a
participant disclose use
before testing. Danny
didn’t. How do you deliver
the consequence to
Danny?

52. What do you say to Danny?
• Is Danny’s abstinence a proximal or distal goal?
• Is there a different response to the “dirty” test and
the lying?
• What sanctions are available and how do you
choose?

53. There are two very different types of
Behavior Changes
• Imposed Behavior Change
• Making you do something that you do not want to
do (work, prison, losses, divorce, sanctions)
• The primary reason for that change is extrinsic not
intrinsic
• Chosen Behavior Change
• Intentional and intrinsically motivated
• Taking ownership of the change and integrating it
into your lifestyle
• DiClemente, “Reducing Recidivism and Promoting Sustained Change, “ 2011

54. How do we…
• Develop a system that gives offenders access to
help to engage the intentional process
• Do not simply rely on extrinsic motivation to create
sustained change
• Parental Accountability Court GA

55. RESTORATIVE JUSTICE

56. Adversarial System Restorative Justice
Crime is defined as a Crime is seen as a harm
violation of rules, and a done to victims and
harm to the state communities
Victim is inhibited from Victim is central to the
speaking about his/her process of defining the
real losses and needs harm and how it might
be repaired
Offender, victim and Offender, victim and
community remain community are active
passive and have little and participate in the
responsibility for a resolution resulting from
resolution the restorative forum

57. Adversarial System Restorative Justice
Offender is blamed, Offender is reintegrated
stigmatized and into the community,
punished dignity is preserved, and
the community’s long
term safety is protected
Repentance and Repentance and
forgiveness are rarely forgiveness are
considered encouraged
Assumes win-loss Makes possible win-win
outcome outcome

58. Adversarial System Restorative Justice
Community’s role is Community is actively
limited involved in holding
offenders accountable,
supporting victims, and
ensuring opportunities
for offenders to make
amends
Restitution is rare Restitution is normal
Controlled and operated Overseen by the state,
by the state and but usually driven by
professionals who seem communities
remote

59. California Community Justice Project:
Building Restorative Justice Principles in the Community
• Enhance awareness/understanding of community
justice principles/practices
• Facilitate information sharing between existing
community justice programs and start-up programs
• Facilitate the development of local practices
consistent with community justice principles
www.courtinfo.ca.gov/programs/ccjp

60. A judge must believe that people
can change with support and like
interaction with participants
Source: Applying Drug Court Concepts in the Juvenile and Family Court
Environments American University, State Justice Institute, June 1998

61. Judge as Change Agent
• Visible to & respected by multiple
systems/stakeholders
• Able to function as a “boundary spanner”
• Strong communicator
• Skilled facilitator
• Consensus builder
• Good political “nose”

62. “I am not a social worker”
Jane Addams, founder of Hull House,
the consummate “social worker.”

63. Arguments Against
• “*Working
therapeutically] cheapens
the judicial office, placing
the judge at the level of a
ringmaster in a judicial
circus.”
• Bean, Philip, “Drug Courts, the Judge, and the
Rehabilitative Ideal,” DRUG COURTS in Theory and
in Practice, James L. Nolan, Jr., Ed., Aldine de
Gruyter (2002)

64. Dr. Bean now
• “It has been said we
should expect only one
good idea in criminal
justice per decade; that
being so, drug courts
make up for two.”
• Bean, Philip, “Drugs and crime,” Willian
Publishing, UK (2002)

65. • “*Being a problem-solving judge] has made me look
at everybody on the other side of the bench—both
defendants and lawyers—not as adversaries but as
people who bring their own life experiences to the
table.”
• Hon. Rosalyn Richter, an acting Supreme Court justice and a former judge
of the Midtown Community Court

66. Working Therapeutically
• It’s good for the judge
• In a series of surveys comparing judges working
therapeutically and those working traditionally,
100% of DTC judges reported being positively
affected by their assignment
• Hora, Peggy Fulton and Deborah Chase, “The Best Seat in the House: The Court Assignment and Judicial
Satisfaction,” 47:2 Family Court Review 209-238 March, 2009.

67. Working Therapeutically
• Effectuates the court’s orders
• If conditions of probation contemplate change in the
defendant, we should enhance the likelihood of
achieving that change

68. Correlation of Questions
• Three answers most highly correlated to the feeling
that the “judicial assignment was beneficial”
1. Litigants were grateful for the help they received
2. Judges witnessed litigant improvement
3. Judges felt hope for litigant improvement
Hora, Peggy Fulton and Deborah J. Chase, J.D., Ph.D, "Judicial Satisfaction When Judging in a Therapeutic Key,"
Contemporary Issues in Law 7:I (2003/2004).

69. Correlation
• The most common predictor of positive emotional
effect was the perception by the judicial officer that
“litigants are grateful for the help they are given by
the court.”
• Chase & Hora, “The Implications of Therapeutic Jurisprudence for Judicial Satisfaction.” 37:1 Court
Review (Spring 2000)

70. Judicial Satisfaction is Nonsense
• “Ought we to be thinking more about the impact of
the team approach on notions of justice, rather than
concern ourselves with the well-being of judges, an
occupational group quite capable of protecting its
own interests?”

71. Needn’t change YOUR style

73. Back to the Future
1. Drug treatment courts will go to scale and serve
every individual who needs court-supervised
treatment in the justice system
2. Current promising practices of other problem-
solving courts will continue to evolve and be
evaluated for efficacy

74. 3. Evidence-based sentencing will be employed by
every judge in every court and mandatory
sentencing will become obsolete
4. Drug courts will be peer accredited and employ
“industry” standards
5. Wide acceptance of problem-solving courts in
the government and in the community will
continue to be the norm
Hora, Peggy Fulton Hon., “THROUGH A GLASS GAVEL: PREDICTING THE FUTURE OF DRUG TREATMENT
COURTS,” Nat’l Ctr for State Courts (In Press)

75. New publication
• Download a pdf version
at:
http://www.ndci.org/p
ublications/more-
publications/-drug-
court-judicial-
benchbook

76. New website
• National Drug Court Resource Center
• www.NDCRC.org

77. System level approach
• The California courts are
already acting on this idea
with a Procedural fairness
initiative.
• Based upon their own independent research
confirming these ideas.
• Responding to diversity, increases in pro se
representation, public distrust of the courts.
• Every experience with the courts – litigant,
juror, etc. should build legitimacy.
• This should occur at all stages: arresting
officers; jail staff; court help-desk; bailiff;
judge.