Problem Solving Courts: Therapeutic Jurisprudence in Practice

Abstract

A transformation in the judiciary has occurred over the past 20 years. The traditional role of the courts has been to adjudicate disputed issues of fact in civil and criminal cases. Traditionally, judges were neutral arbiters considering conflicting evidence and rendering a decision based on the law and the facts. However, because a variety of social and psychological problems finding their way to the courts, a metamorphosis has occurred in the judicial role. Indeed, these courts, collectively often referred to as “problem-solving courts,” have different jurisdiction than traditional courts and separate judges who preside in them. The judicial teams in these courts address social problems such as drug addiction, alcoholism, domestic violence, untreated mental illness, and prisoner reentry into society. This chapter discusses therapeutic jurisprudence as the underlying philosophy that directs and guides these new courts. It discusses the changing roles of judges, attorneys, and clients who make use of the problem-solving court model highlighting the gains that the movement has made and comparing the gains to the new challenges that have arisen as the result of the altered roles of the legal actors in these courts. Problem-solving courts represent a newly broadened conception of the role of the courts, one that is fully consistent with the basic concept of therapeutic jurisprudence. It is a noble undertaking to close the revolving door to certain kinds of repetitive offenses by providing judicially supervised and monitored treatment to those motivated to undertake it. To perform this new judicial role, judges need to develop and improve their interpersonal, psychological, and social work skills. The chapter ends with a discussion of how therapeutic jurisprudence can add to the training and development of legal professionals who can make a difference in the problem-solving courts of the future.

This chapter was prepared for a conference at the University of Nebraska Lincoln in January of 2010. Professor Winick participated in this conference with a video link. He was ill at the time of the conference. At the time near the end of his life, Professor Winick was engaged in some empirical work with Richard Wiener, the editor of this book. Bruce nearly completed this chapter before his untimely passing. Margot Winick, daughter of Professor Winick gave permission for us to include this chapter in the current book. Dr. Wiener completed some sections and did some light editing of the manuscript. As was always the case, little work was required to prepare Professor Winick’s paper for publication.