problem-oriented courts · research paper, lrcwa project no. 96 3 emerged in response to claims...

Problem-Oriented Courts

Harry Blagg

A Research Paper prepared forthe Law Reform Commission ofWestern Australia

Project 96

March 2008

Law Reform Commission of Western Australia

Commissioners

Chair Ms AG Braddock SC, BA in Law (Cambridge)

Members: Ms MA Kenny, BJuris, LLB (Hons) (Western Australia), LLM (Iowa)Mr Robert Mitchell SC

Executive Officer Ms HJ Kay, LLB, LLM (Western Australia)

© Government of Western Australia

ALL RIGHTS RESERVED

Law Reform Commission of Western AustraliaLevel 3, BGC Centre28 The EsplanadePerth WA 6000Australia

Telephone: 011+61+8+9321 4833Facsimile: 011+61+8+9321 5833

ISBN: 978-1-74035-064-8

Dr Harry Blagg is a Honorary Research Fellow at theCrime Research Centre at the University of WesternAustralia. His main focus of research in recent years hasbeen in the area of Aboriginal contact with the criminaljustice system. He has written, both nationally andinternationally, on the topic of restorative justice andIndigenous people. He has a particular interest in thedynamics of family violence and programs to addresssuch problems.

DISCLAIMER

The purpose of this Research Paper is to provideadditional information on issues relevant to the Project.The views expressed in this Research Paper are those ofthe individual author and do not necessarily coincide withthe views of the Commission.

1Research Paper, LRCWA Project No. 96

Contents

Introduction 2

A Changing Justice System 4

Victims 4

The problem-oriented approach in policing 5

What’s the Problem? 6

Restorative Justice 8

What is restorative justice? 8

Therapeutic Jurisprudence 12

A holistic approach 14

Restorative Justice and Therapeutic Jurisprudence: Areas of convergence 15

Brief Encounters: Treatment and the Courts 16

The Development of Problem-Oriented Courts 18

Fixing Broken Windows: Community courts and community building 18

Community justice courts – United Kingdom 20

Drug courts 20

Domestic violence courts 21

Mental health courts 23

Issues for Judges and Magistrates 25

What’s in it for Other Court Users? 26

Problem-Oriented Approach in Other Courts 27

Conclusion 28

2 H Blagg, Problem-Oriented Courts

I ntroduction

This paper addresses a number of issueslinked to the emergence of problem-oriented courts. Problem-oriented courtsform part of an emerging judicial spherewhere the traditional focus on legalprocess is balanced with concern fortherapeutic outcomes. Expressed simply,problem-oriented courts seek to use theauthority and structure of the courts tofurther therapeutic goals and enhancethe performance of agencies involved indelivering court mandated services.Problem-oriented courts attempt tofacilitate a team approach and encourageclose collaboration between agenciesinvolved in the justice process. Theproblem-oriented court acts as the ‘hub’connecting various ‘spokes’, such as drugand alcohol treatment agencies,community based corrections, probationservices and domestic violence agencies,forming a holistic and integrated approach.This approach encourages magistrates andjudges to take a pro-active and overtlyleading role in the creation of better, wellcoordinated services for clients.

Supporters of problem-oriented courtsmaintain that such courts sit outside thetraditional punishment paradigm, beingmore concerned with treatment andrehabilitation outcomes.1 The orientationof the court is neatly encapsulated in thenotion of ‘forward looking’ as opposed to‘backward looking’ forms of justice – thatis, sentencing practices should be gearedtowards encouraging positive futurebehaviour rather then simply punishingpast actions. The future impact ofproblem-oriented courts on the ways thecriminal justice as a whole deals withoffending linked to issues such as drugand alcohol use, mental health,homelessness and social exclusion couldprove to be far reaching. Moreover theproblem-oriented approach – and thephilosophies of therapeutic jurisprudenceand, to a lesser extent, restorative justicethat inform the approach – may influencethe orientation of mainstream courts.

The approach is largely in its infancy inAustralia. There is no settled theory(although a number of theories vie forrelevance) and no unified templatedescribing how a problem-oriented courtshould operate. Working practices varyaccording to the nature of the problemthe court has been developed to deal with.The long-term benefits of the problem-oriented approach and its implications forthe criminal justice system remain thesubject of debate, both within the judiciaryand within the network of agencies aproblem-oriented approach binds togetherto work collectively on a particularproblem.

Problem-oriented courts can includecommunity or neighbourhood courts,family and domestic violence courts, mentalhealth courts, drug courts and alcoholcourts. However, the problem-orientedapproach is also being used by somemagistrates in general courts when dealingwith particular groups of offenders. Thisis particularly the case where amagistrate’s court has become the sitefor specialist treatment and diversionaryservices, such as Western Australia’s court-based drug diversion initiatives.2 This paperexcludes discussion of Aboriginal Courtswhich have been extensively consideredby the Law Reform Commission as part ofits Aboriginal Customary Law Project.3

Problem-oriented courts have notemerged in a vacuum, but in response tothe challenges posed by a number ofseemingly intractable urban social problems(drug use, alcohol, family and domesticviolence, mental i l lness, anti-socialbehaviour, fear of crime, and problemsassociated with ‘hyper-marginalised’groups) apparently impervious totraditional remedies and solutions. Theyalso reflect frustration with the oftenfragmented and ad hoc response oftraditional justice structures, cultures andprocesses. Some courts, such ascommunity or neighbourhood courts, have

1. Moore D, ‘Translating Justice andTherapy: The drug treatment courtnetworks’ (2007) 47 British Journal ofCriminology 42.

2. For a review, see UWA Crime ResearchCentre, WA Diversion Program –Evaluation Framework (POP/STIR/IDP): Final Report for the Drug andAlcohol Office (Perth, 2007).

3. Aboriginal courts require a separatetreatment. Freiberg lists them as a formof problem-oriented court. However,this view overlooks the fact that, froman Indigenous perspective, the ‘problem’lies in the traditional incapacity of thewhite-fel la system to recogniseIndigenous law and values. Aboriginalcourts are concerned with politicalrealignment between two opposinglegal paradigms. See Law ReformCommission of Western Australia,Aboriginal Customary Laws: DiscussionPaper, Project No. 94 (December2005); Law Reform Commission ofWestern Austral ia, AboriginalCustomary Laws, Final Report No. 94(September 2006). Marchetti and Dalyalso distinguish between problem-oriented and Aboriginal Courts forreasons similar to those put forward bythe Law Reform Commission of WesternAustralia: see Marchetti E & Daly K,‘Indigenous Courts and Justice Practicesin Australia’ (2004) Australian Instituteof Criminology: Trends and Issues inCrime and Criminal Justice, No. 277.However, Harris sees consistencybetween the aims of the Victorian KooriCourts and therapeutic jurisprudence,claiming that they ‘respond to the needsof Indigenous communities in a waythat is consistent with the objects oftherapeutic jurisprudence’: see Harris M‘The Koori Court and the Promise ofTherapeutic Jurisprudence’ (2006) 1E Law – Murdoch University ElectronicJournal of Law (Special Series) 129<https://elaw. murdoch.edu.au/issues/special/the_ koori_court.pdf>.


emerged in response to claims that thecourts are out of touch with the concernsof local communities and have beenmandated to directly involve local peoplein the delivery of justice.

Problem-oriented courts have beeninfluenced by the philosophies ofrestorative justice and therapeuticjurisprudence. While, as will bedemonstrated later, the two philosophiescannot simply be collapsed together, theydo share a common commitment to‘humanising’ the justice process, closelyintegrating concerns for individual andsocial change into the legal process, andproviding ‘forward looking’ rather than‘backward looking’ justice outcomes. Thislatter concern in particular represents aparadigm shift in the way justice isconceived: less concerned with simplyjudging past actions than with affectingchange in individuals and social contextsto ensure crime and victimisation isprevented in the future. Besides thevarious philosophies vying for influence inthe courts, the problem-oriented court hasbecome the site for new hybrid techniquesfor engaging with the needs and problems

of offenders. Since the focus of problem-oriented courts extends beyond applyingthe law, there is a need for behaviouraltechniques and treatments suited tothe new environment. Interventiontechniques such as motivationalinterviewing and brief interventions,discussed later, borrowed from addictioncounselling, are emerging as interventiontools within problem-oriented courtsbecause they claim positive results withina short timeframe.

Problem-oriented courts are not simply anew type of specialist court. As Freibergpoints out, specialist courts, such aschildren’s courts, have been in existencefor a considerable amount of time.4

Specialist courts tend to be gearedtowards handling complex areas of law,whereas problem-oriented courts aremore concerned with complex socialproblems that law alone is unable toresolve. The aim of the problem-orientedcourt is not to resolve complex legal issues,but rather to bring the authority andmachinery of the court to bear on aparticular social problem or suite ofproblems.

4. Freiberg A, ‘Innovations in the CourtSystem’ (Paper presented at theAustralian Institute of CriminologyConference on Crime in Australia:International Connections, Melbourne,29–30 November 2004).


In recent years a number of judicialscholars and criminologists have identifiedevolutionary shifts taking place in thestructures and functions of the justicesystem. Zedner suggests that, at all levels,the system of justice as we have cometo know over the last hundred or so yearsmay simply be an historical ‘blip’ and willinevitably be superseded by new systemsin an age where the traditional boundariesbetween systems are becoming morefluid.5

It has become an accepted tenet ofcontemporary justice policy that noagency acting in isolation can hope tomake an impact on complex crime relatedissues. Complex problems require a jointapproach that harnesses the skills andresources of agencies (welfare, policing,judicial, treatment) on a collaborative basis.There have been a range of pressuresfor all agencies working within the justiceand justice related areas to set asidecultural differences and work in a morecollegiate, ‘joined up’6 and coordinatedway, recognising that decisions made atone stage of the justice system haveimplications further down the track.Sound ‘gate-keeping’ practices7 at onestage of the system, such as the first pointof contact with the police, can saveresources at a later stage of the systemto be used for cases requiring moreintensive intervention.

Courts may wish to be participants in goodjoined up work, but courts are often theplace where the inadequacies, flaws andweakness of inter-agency work areexposed. ‘Whole of government’approaches sound fine in theory but aredifficult to achieve in practice: goodintegrated agency work is the holy grailof contemporary justice policy – deeplydesired, diligently pursued, oftentantalisingly close, but always likely tovanish into the ether. One stimulus forthe problem-oriented court may lie in thefrustration many magistrates and judges

A Changing Justice System

feel with the lack of adequate coordinationand information sharing within andbetween relevant agencies. Magistratesmay see the problem-oriented approachas offering some leverage over the system– a means by which they can influencelocal cultural practices and the ‘silo’mentality8 of local agencies.

Victims

Courts have come under significantpressure to be responsive to the needsof victims and other vulnerable groups, andthere is abundant literature detailing thecapacities of the system itself to be a siteof secondary victimisation.9 This hasprompted courts, prosecutorial agencies,defence and the police to review theways they deal with victims of crime. Ithas raised the issue of whether successfuladjudication should be the fundamentalgoal of justice, trumping all otherconcerns, and whether it is good practicefor positive learning experiences foroffenders and therapeutic healing forvictims to be deferred until after trials takeplace. New initiatives concerned withaiding vulnerable groups involved in thejustice process, such as WesternAustralia’s Child Witness Support Service,sharpen awareness that the justiceprocess can have positive or negativetherapeutic outcomes for participants,depending on how well they aresupported through the process. Thecriminal justice system can itself becomethe site of ‘secondary’ or ‘system’victimisation if victims are not treated withdignity and respect and kept informedabout the status of the prosecution.10

Before looking in detail at problem-oriented courts it is useful to briefly identifythe origins of the idea. Commentatorsagree that the problem-oriented courtowes a debt to the problem-orientedapproach developed in the context ofpolicing.11

5. Zedner L, ‘Policing Before and After thePolice’ (2006) 46 British Journal ofCriminology 78, 78.

6. The term is generally believed to haveemerged in the United Kingdom: seeUK Government, The ModernisingGovernment White Paper (March 1999).The White Paper made joining upgovernment and frontline agencies toproduce more integrated services a toppriority. It implies creating new pointsof connection between the differentarms of government, from policy-makingthrough operations to service provision,creating ‘seamless’ policy.

7. Gate-keeping refers to decisions madeby front-line personnel regardingwhether to open the gates to the systemor close them and keep people awayfrom further contact. The police, forexample, are the acknowledged ‘gate-keepers’ of, and point of first contactwith, the criminal justice system andenjoy a degree of discretion aboutwhether to take proceedings further ordeal with matters informally. This isparticularly the case in relation to minoroffending by juveniles, where thepolice have been encouraged to usegate-keeping powers to divert youngpeople away from contact with thecriminal justice system and, intherapeutic jurisprudence terms, its ‘anti-therapeutic’ tendencies: see Blagg H &Wilkie M, Young People and PolicePowers (Sydney: Australian YouthFoundation, 1995).

8. The ‘silo’ mentality implies that agenciesare unable to see beyond the confinesof their own agencies narrow horizonsand view work with other agencies inconflict terms with each agency incompetition with other agencies. Itcame in for sharp criticism in WesternAustralia during the ‘Gordon’ Inquiryinto sexual abuse an family violence inthe Indigenous community: see GordonS, Hallam K & Henry D, Putting thePicture Together: Inquiry into responseby government agencies to complaintsof family violence and child abuse inAboriginal communit ies (Perth:Department of Premier and Cabinet,2002).

9. For a recent review, see Taylor C, CourtLicensed Abuse: Patriarchal lore and thelegal response to intrafamilial sexualabuse of children (New York: Peter LangPub Inc., 2004).

10. Walklate S, Victimology: The victim andthe criminal justice process (London:Unwin Hyman, 1989).

11. Tilley N, ‘Community Policing, Problem-Oriented Policing and Intelligence-LedPolicing’ in Newburn T (ed), Handbookof Policing (London: Willan Publishing,2003).


The problem-orientedapproach in policing

The problem-oriented approach can betraced back to the innovative work ofHerman Goldstein who employed the ideato focus police practices on strategicallydefined priorities.12 Goldstein encouragedpolice organisations to move away from anarrow preoccupation with crime fightingtowards problem solving. Goldstein wascritical of the tendency for policing to beincident-driven: a practice which ensuredthat the structural conditions underpinningindividual crime events were leftunresolved. The police in modern urbansocieties, Goldstein observed, strugglewith an overwhelming array of problems– generally associated in some way withthe sale and consumption of drugs, andthe violence and social disorder this marketcreates.13 Meaningful reductions in thescale and intensity of crime required long-term strategies rather than the short-termgoal of arresting offenders and temporarilytaking the problem off the street orshifting the problem somewhere else.

Problem-Oriented Policing (POP) isconcerned with gathering intelligence oncrime incidents in a particular locality,identifying characteristics and then tacklingthe underlying issues in the communalenvironment. The approach is concernedwith prevention rather than simpleenforcement. POP also challenged thetraditional police culture which tended todefine the task of policing in narrow law

enforcement terms. Instead POP seeksthe active involvement of communitiesand relevant government agencies andnon-government organisations in thedevelopment of strategies. In this respectPOP formed part of an evolving sphere ofpolicies in the criminal justice area premisedon the belief that in complexcontemporary societies the task of policingrequires input from agencies other thanthe police.14

POP required a greater willingness to workin partnership with communities; todevelop an evidence base by gatheringrelevant statistics, trawling throughrelevant literature and finding out whathas worked elsewhere; and to work in apro-active rather than reactive fashion.Goldstein argued that the dominant viewof policing as essentially concerned withenforcing the law distorts ourunderstanding of the actual role playedby the police, which consists of‘developing the most effective means fordealing with a multitude of troublesomesituations … these means will often, butnot always, include appropriate use of thecriminal law’.15 POP has becomesynonymous with multi-agency crimeprevention initiatives around issues asdiverse as juvenile crime, vandalism, drugs,burglary and car theft. In the UnitedKingdom it has become firmly associatedwith strategies such as community-basedpolicing and multi-agency strategies toreduce repeat burglaries on large housingestates.16 12. Goldstein H, ‘Toward Community-

Oriented Policing: Potential, basicrequirements, and threshold questions’(1987) 33 Crime and Delinquency 6.

13. Goldstein H, Problem-Oriented Policing(New York: McGraw Hill, 1990) xi.

14. Shearing CD, ‘Reinventing Policing:Pol icing as governance’ (Paperpresented at the Conference onPrivatisation: Retreat or proliferation ofstate control, Bielefeld, Germany, 24–26 March 1994).

15. Goldstein H, Problem-Oriented Policing(New York: McGraw Hill, 1990) 2.

16. Leigh A, Read T & Tilley N, ‘Problem-Oriented Policing, Brit POP’, HomeOffice Police Research Group: CrimeDetection and Prevention Series, PaperNo. 75 (1996).


Problem-oriented courts were firstestablished in the United States in thelate 1980s. Berman and Feinblatt definea problem-oriented court as a courtseeking to use the authority of the courts‘to address the underlying problems ofindividual litigants, the social problems ofcommunities, and the structural andoperational problems of a fractured justicesystem’.17 They emerged, according toRottman and Casey, in response to theenormous pressure being placed on courtsto solve a number of endemic socialproblems.

The main push for this change came fromthe societal changes that placed courts inthe frontline of responses to substanceabuse, family breakdown, and mentalillness. Courts cannot restrict the flow ofsuch problems into the courtroom, andoften such problems stand in the way ofeffective adjudication of cases.Consequently, courts are struggling tocreate appropriate dispositionaloutcomes, including securing treatmentand social services.18

The problem-solving approach emergedas a mechanism for courts to managethese pressures and for finding ways toreduce high levels of repeat incarcerationby ensuring services are available. Freibergsees the emergence of problem-orientedcourts as a response to a changing socialenvironment, exerting a range of newpressures on traditional courts. There isan increasing expectation that courts willrun efficiently, work collaboratively withjustice agencies, assess the quality of theservices they provide to victims andwitnesses, and be open andtransparent.19 The problem-orientedcourt represents a species of law reformpromising to meet these expectations.Observers agree that the process isevolutionary and a ‘work in progress’.20

What sets the problem-oriented approachapart from other approaches is the explicitcommitment to social change. Berman andFeinblatt emphasise that problem-oriented

W hat’s the Problem?

courts were designed to deal with ‘brokensystems’—not just broken laws—and wereto focus on ‘chronic social, human, andlegal problems’21 of the kind that hadproven resistant to most criminal justicesolutions.

They seek to broaden the focus of legalproceedings, from simply adjudicating pastfacts and legal issues to changing thefuture behaviour of litigants and ensuringthe future well-being of communities. Andthey attempt to fix broken systems, makingcourts (and their partners) moreaccountable and responsive to theirprimary customers – the citizens who usecourts every day, either as victims, jurors,witnesses, litigants, or defendants.22

The fact that the courts are ‘problem’-oriented strongly implies that they willinevitably be concerned with the socialproblems underlying offending rather thanthe narrow legal implications. Buttssuggests that, while problem-orientedcourts maintain traditional beliefs thatoffenders should be made accountable,the system should do more than punish;it should prevent future harm.23 Hesituates their emergence within a broadertrend towards ‘community justice’, linkingthem with community policing andneighbourhood-based justice programs, allof which are underpinned by the beliefthat the justice system is too remote fromthe lives of ordinary citizens and neededto be devolved to the local level.24 Bermanand Feinblatt maintain that these courtshave emerged because of the breakdownin ‘social and community institutions(including families and churches) that havetraditionally addressed problems likeaddiction, mental illness, quality-of-lifecrime, and domestic violence’,25 suggestingthat agencies such as probation and parolehave struggled to meet the demandsplaced upon them to resolve theseproblems. They suggest that policymakers are now seeking an alternative toover-crowded prisons to handle crimeproblems and that ‘[a]dvances in thequality and availability of therapeutic

17. Berman G & Feinblatt J, ‘Problem-Solving Courts: A brief primer’ (2001)23 Law and Policy 125, 130–31; seealso Berman G & Feinblatt J, ‘Problem-Solving Courts: A brief primer’ as citedin Winick BJ & Wexler DB (ed), Judgingin a Therapeutic Key: Therapeuticjurisprudence and the courts (Durham:Carolina Academic Press, 2003).

18. Rottman D & Casey P, ‘TherapeuticJurisprudence and the Emergence ofProblem-Solving Courts’ (1999) 240National Institute of Justice Journal 12,13.

19. See Freiberg A ‘Problem-OrientedCourts: Innovative solutions tointractable problems?’ (2001) 11 Journalof Judicial Administration 8. Freibergsummarises the work of Berman &Feinblatt on the distinction betweentraditional and problem focussed courts:Berman G & Feinblatt J ‘Problem-SolvingCourts: A brief primer’ (2001) 23 Lawand Policy 125.

20. Rottman D & Casey P, ‘TherapeuticJurisprudence and the Emergence ofProblem-Solving Courts’ (1999) 240National Institute of Justice Journal 12.

21. Berman G & Feinblatt J, ‘Problem-Solving Courts: A brief primer’ (2001)23 Law and Policy 125, 126.

22. Ibid.23. Butts JA, ‘Introduction: Problem-solving

courts’ (2001) 23 Law and Policy 121.24. Ibid 122.25. Berman G & Feinblatt J, ‘Problem-

Solving Courts: A brief primer’ (2001)23 Law and Policy 125, 128.


interventions’26 have increased confidencein treatment options – particularly drugtreatment programs. There has also beena shift in public attitudes towards ‘low-level’ crime and domestic violence (infavour of more vigorous forms ofintervention).27

Freiberg argues that problem-orientedcourts are a reaction against many of thenegative tendencies in contemporaryjustice policy which has led to ‘assembly-line justice produced by casemanagement, plea-bargaining and heavycase loads or, what one judge has termed,“McJustice”.’28 In contrast to thisimpersonalised and bureaucratisedassembly line approach to justice, theproblem-oriented court focusses ontherapeutic rather than legal outcomes,promotes a collaborative rather than anadversarial approach within the courtsystem, is people rather than caseoriented, and is informal rather thanformal, with the judge becoming a ‘coach’rather than an ‘arbiter’.29 Judges andmagistrates become agents of socialchange, both within the court withindividual offenders and offences, andoutside the court, as they attempt torestructure the way government systemsdeal with intractable problems.

Clearly, problem-oriented courts haveemerged in response to pressures oncourts to do more to tackle thorny socialproblems, but they also reflect frustrationsby the judiciary about its lack of input intothe working practices of agencies(probation officers, social workers,correctional staff, juvenile justice workers,drug and alcohol counsellors, etc) whomthey delegate to provide treatment,

supervision and support. One keydifference between problem solving andother courts is the expanded role for thejudicial officer to monitor cases: insteadof simply passing on cases to otheragencies, some courts take an active partin the change process and closely monitorboth offenders and the agencies whosupervise them. In American drug courts,judges closely monitor and superviseoffender performance, and requireongoing returns to court and progressreports.30 The court becomes a hub forintervention rather than a simple delegatorof tasks. Indeed, in the American drugcourt model the court aims to become ‘acurative realm’ where addicts are cured,‘quite literally, within the walls of thecourtroom’.31

It is generally accepted in the relevantliterature that problem-oriented courtshave been influenced by restorative justiceand therapeutic jurisprudence.32 Somepractitioners view therapeuticjurisprudence as particularly influential.33 Itis useful therefore to briefly discuss thesetheories and what they have offered tothe emerging field of ideas. Restorativejustice has a more established place in thejustice system than therapeuticjurisprudence and has been subjected tobroader theoretical and empirical scrutinythan therapeutic jurisprudence; therefore,it will be discussed first. Restorative justiceemerged in the late 1980s and quicklyprovided a philosophical base for a raft ofinnovations stretching from diversionaryconferencing for juvenile offendersthrough to processes of national healingin the form of ‘truth and reconciliation’commissions.34

26. Ibid.27. Ibid.28. Freiberg A ‘Problem-Oriented Courts:

Innovative solutions to intractableproblems?’ (2001) 11 Journal of JudicialAdministration 8, 9.

29. Ibid 10.30. Berman G & Feinblatt J, ‘Problem-

Solving Courts: A brief primer’ (2001)23 Law and Policy 125, 131.

31. Moore D, ‘Translating Justice andTherapy: The drug treatment courtnetworks’ (2007) 47 British Journal ofCriminology 42, 42.

32. Freiberg A, ‘Problem-Oriented Courts:Innovative solutions to intractableproblems?’ (2001) 11 Journal of JudicialAdministration 8; Winick BJ & WexlerDB (eds), Law in a Therapeutic Key:Developments in therapeuticjurisprudence (Durham: CarolinaAcademic Press, 1996).

33. Ibid.34. Braithwaite J, ‘Restorative Justice:

Assessing optimistic and pessimisticaccounts’ (1999) 25 Crime and Justice:A Review of Research 1, 7.


While problem-oriented courts havebecome particularly associated with thephilosophies and techniques oftherapeutic jurisprudence they have alsobeen influenced by restorative justice.There are areas of common groundbetween therapeutic jurisprudence andrestorative justice. Both are concernedwith improving outcomes for victims,offenders and the broader society byattempting to resolve and heal the effectsof crime rather than simply imposing thelaw. This is not to suggest thattherapeutic jurisprudence and restorativejustice are identical twins. It is importantto acknowledge the subtle – and the notso subtle – variations in the twoapproaches. The overlap in values aroundbeing victim/client centred and the focuson repairing harm rather than imposinglaw mask a number of core differences,the most fundamental of which relatesto the role of the courts and judicialofficers as agents of social change.

What is restorativejustice?

The definition established by Tony Marshalldescribes the aims of restorative justice.

Restorative justice is a process wherebyall the parties with a stake in a particularoffence come together to resolvecollectively how to deal with the aftermathof the offence and its implications for thefuture.35

In its pure form, restorative justicephilosophy has tended to present thecourts as a primary barrier to restorativesolutions and has placed its faith in informalprocesses, such as conferences, that lieoutside the formal judicial sphere.Restorative justice advocates have tendedto portray courts as lacking the necessaryflexibility to deal with complex social issues.Not surprisingly, therefore, restorativejustice has been particularly influential inthe development of diversionary optionswhich deliberately seek to minimise—

where they cannot bypass altogether—court involvement. Diversion is the termgiven to options that re-route cases awayfrom contact with the criminal justicesystem. Diversion can take place at anypoint of contact – pre-arrest or pre-trial.The purpose of diversion is to ensure theleast intrusive option while opening uppotential for alternative forms of disputeresolution.

Bazemore and Walgrave36 suggest that,at its most fundamental, restorative justicerefers to actions which repair the harmscaused by crime, as opposed to simplyimposing the law. In a seminal articleproduced in the late 1990s, Zehr and Mikaoutline the key philosophy of restorativejustice. They argue that crime isfundamentally a violation of people andpersonal relationships before it is a violationof laws: laws should be subordinate to thehuman and social context of the offence.Restorative programs must focus onrepairing the harm caused by crime ratherthan responding to breaches of the law.37

Restorative justice emerged at a timewhen the inadequacies of the criminaljustice system were being publicly airedand policies were being pulled in oftencontradictory directions.38 Restorativejustice offered a new way of resolvingmany of the widely perceivedshortcomings of the system – offering toharmonise apparently incommensurablegoals such as delivering better forms ofjustice to offenders and communities,while giving a voice to victims. Restorativejustice had deep roots in what has beencalled the ‘informal justice’ lobby, whichincluded activists seeking to de-institutionalise and devolve justice to thelocal level and return power to grass-rootscommunities.39 It was strongly influencedby Nils Christie’s assertion that the statehabitually ‘steals’ our conflicts and the goalof justice reform should be to returncontrol to those most directly affected byconflict.40 Declan Roche suggests thatrestorative justice ‘became a unifying

R estorative Justice

35. Marshal l T, ‘The Evolution ofRestorative Justice In Britain’ (1996) 4(4)European Journal on Criminal Policy andResearch 21, 37.

36. Bazemore G & Walgrave L (eds),Restorative Juvenile Justice: Repairingthe harm of youth crime (Monsey:Criminal Justice Press, 1999).

37. Zehr H & Mika H, ‘FundamentalConcepts of Restorative Justice’ (1998)1 Contemporary Justice Review 47, 51–52.

38. Garland D, The Culture of Control:Crime and social order in contemporarysociety (Oxford: Oxford UniversityPress, 2001).

39. Matthews R (ed), Informal Justice(London: SAGE, 1988). Proponents ofInformal Justice supported processessuch as alternative dispute resolution runby neighbourhood justice centres as analternative to the formal court system.

40. Christie N, ‘Conflicts as Property’ (1977)17 British Journal of Criminology 1.


banner “sweeping up” a number ofinformal traditions of justice and capturingthe imagination of many of thoseinterested in reforming the criminal justicesystem’.41 Some prominent restorativejustice advocates maintain that restorativejustice is not simply a new brand of justicereform but represents an emerging globalsocial movement capable of radicallytransforming our most fundamental beliefsabout the role of justice in society.42

Fundamentally, therefore, restorativejustice is concerned with a shift inauthority and responsibility for the deliveryof justice away from traditional sites, suchas courts, and into the community. Rochesummarises this position in a recent study:

Judges do not have a monopoly on theadministration of justice; it can also beadministered by ordinary citizens ineveryday locations such as homes,neighbourhoods, and workplaces. Outsidethe formal rules and procedures of acourtroom justice can be done quickly andcheaply, and can provide an opportunityfor people to display valuable qualities suchas compassion and understanding.43

In New Zealand, interest in restorativejustice was boosted by the emergenceof conferencing as a vehicle for restorativesolutions. Conferencing lay at the centreof a raft of radical reforms to both justiceand welfare services under the Children,Young Persons and Their Families Act 1989(NZ).44 The Act sets out a series ofprinciples guiding the conduct of youthjustice proceedings which are consistentwith restorative justice. These includeinvolving all those affected by an offence,holding offenders accountable and takingvictim’s wishes into account.45 Under theAct a conference (known as a Family GroupConference) is held in the vast majority ofcases involving young people.

The attraction of the conferencing modellay in its capacity to involve all partiesconcerned in and affected by a particularoffence – not just those with a narrowlegal interest. These include not just the

primary victims and offenders but alsosecondary victims (such as family andfriends) as well as supporters of theoffender. Moreover, these stakeholderswere not simply there to air grievances orexpress their views about the offender’sbehaviour. The conference had decision-making power and those involved in theconference may have an important roleto play in deciding what steps needed tobe taken to resolve a particular problemand in ensuring that any conference planentered into by the offender wasimplemented.

The attraction of the conference for policymakers, police and justice workers was thatit had the potential to make diversion lookless like a soft option. Diversion becomesnot just a mechanism for re-routingindividual cases away from contact withthe existing criminal justice system but avehicle for directing cases into analternative process of community-basedjustice. Diversionary conferencing seemedto suit the interests of a number of keyplayers. The police might have increasedconfidence in referring juveniles to aconference when they know the youngoffender may have to face up to thevictim, offer compensation and/orundertake some community task; whileyouth justice workers could feel theywere removing the potentially stigmatisingeffects of involvement (or whattherapeutic jurisprudence would call the‘anti-therapeutic’ consequences ofinvolvement) with the courts, whileproviding a meaningful experience toyoung people and an opportunity forgenuine community involvement.

Wide interest in John Braithwaite’s thesisof ‘reintegrative shaming’46 confirmed theappeal of conferencing and reinforced thebelief that conferencing was a bettermethod than existing models of justice.47

Reintegrative shaming describes a form ofshaming ceremony in which offenders arereintegrated into the fold throughstrategies of community—rather than

41. Roche D, Accountability in RestorativeJustice (Oxford: Oxford UniversityPress, 2003) 6.

42. Braithwaite J, ‘Restorative Justice:Assessing optimistic and pessimisticaccounts’ (1999) 25 Crime and Justice:A review of research 1.

43. Roche D, Accountability in RestorativeJustice (Oxford: Oxford UniversityPress, 2003) ix.

44. Van Ness D, Morris A & Maxwell G,‘Introducing Restorative Justice’ inMaxwell G & Morris A (eds), RestoringJustice for Juveniles: Conferencing,mediation and circles (Oxford: HartPublishing, 2001).

45. Maxwell G & Morris A, ‘Family GroupConferences and Reoffending’ inMaxwell & Morris, ibid.

46. Braithwaite J, Crime, Shame andReintegration (Cambridge: CambridgeUniversity Press, 1989).

47. Braithwaite J & Mugford S, ‘Conditionsof Successful ReintegrationCeremonies: Dealing with juvenileoffenders’ (1994) 34 British Journal ofCriminology 139.


official—disapproval, in a way thatcondemns the offence but does notdenigrate the offender.48 There has beenconsiderable critical debate about thenotion of reintegrative shaming and a fullexamination of the issue lies outside thescope of this paper. Critics have pointedto the difficulties inherent in developinginformal mechanisms of condemnationthat do not denigrate in some way. Badlyhandled ‘shaming’ ceremonies canbecome destructive, especially in relationto marginalised groups who have no pre-existing stake in the mainstreamcommunity.49

Roche suggests that informal justiceprocesses can lack accountability andsubside into name calling, bullying andintimidation.50 There have been instanceswhere restorative justice forums havelacked the kind of accountability writteninto the judicial process: the now infamous‘I am a thief’ episode in the mid 1990s inCanberra where a young person was madeto wear a T-shirt with ‘I am a thief’emblazoned on it.51 Some criminologistshave feared that—whatever the explicitaims of restorative justice—theunintended outcome of support for publicshaming could be that it paves the wayfor a return to the days of punishment asa form of public spectacle (in the form of‘chain gangs’ for example) intended tohumiliate52 rather than re-integrateoffenders. Others have questioned theemphasis on forums such as conferencesas the main arena for restorative solutions.White, for example, calls for a form ofrestorative justice for marginalised youngpeople based on social justice andcommunity capacity building, arguing thatrestorative justice should encompass socialinclusion strategies rather than beingconcerned solely with individualoffenders.53

The common threads in restorative justicephilosophy include:

• victim involvement and participation inthe process (including primary andsecondary victims of crime, as well asvictim advocates);

• the use of alternative forums andformats for restorative processes, suchas the ‘conference’ format (instead ofinstitutions such as courts);

• a focus on the personal harms causedby criminal events rather than thecriminal laws broken;

• a less elevated role for legalprofessionals and major institutions andtheir systems of knowledge, in favourof lay people, whose skills andknowledge (of people, situations,communities) may be of equal, if notgreater, value;

• a high premium placed on voluntariness– people should not be coerced intotaking part in restorative processes;

• a focus on symbolic or token forms ofrestitution, rather than attempting tosqueeze equivalent amounts of moneyor goods from people who do not havethem;

• reconciliation and forgiveness aspositive and desirable, though notalways feasible, outcomes for victims,offenders and communities; and

• a focus on the reintegration ofoffenders back into communities andfamilies.

Roche usefully summarises the four valuesunderpinning restorative justice as‘personalism, participation, reparation, andreintegration’.54 Personalism because crimeis fundamentally a violation of people notlaws; reparation because repairing theharm should be the goal of justice;participation because those most affectedby a crime should be involved in itsresolution; and reintegration becauserestorative solutions require that theoffender’s ties with the community shouldbe repaired not destroyed.55

48. Ibid 142.49. Blagg H, ‘A Just Measure of Shame?

Aboriginal Youth and Conferencing inAustralia’ (1997) 37 British Journal ofCriminology 481; Blagg H, ‘RestorativeVisions and Restorative JusticePractices: Conferencing, ceremony andreconciliation in Australia’ (1998) 10Current Issues in Criminal Justice 5.


51. For a discussion, see Roche, ibid;Braithwaite J, ‘Restorative Justice:Assessing optimistic and pessimisticaccounts’ (1999) 25 Crime and Justice:A review of research 1, 97.

52. Pratt J, ‘The Return of theWheelbarrow Men; or, the Arrival ofPost- Modern Penalty?’ (2000) 40British Journal of Criminology 127.

53. White R, ‘Communities, Conferencesand Restorative Social Justice’ (2003)3 Criminal Justice 139.


55. Ibid 32.


While supporters of restorative justicewould generally adhere to these broadvalues there are significant differences inemphasis – particularly in relation to thequestion of what constitutes successfuloutcome. Is it only restorative justice whenall who have been affected by a crime areinvolved in its resolution? Some supportersof restorative justice argue that restorativeprocesses require achieving a balancebetween the interests of keystakeholders, principally communities,victims and offenders,56 and equalparticipation by these stakeholders isrequired for genuine success. This is bestachieved through participatory processessuch as community conferencing, familyconferencing and peace circles. Othercommentators, however, believe thatrestorative processes are possible, evenwhere all parties are not involved.Walgrave, for example, makes the casethat work with victims can be restorativeeven when the offender is notapprehended, providing victims areallowed to tell their stories and havesomeone acknowledge the impact thecriminal event has had on their lives.57

Based on research with victims andoffenders in South Australia, Daly questionsone of the most cherished restorativejustice commandments, that restorativejustice lies at the opposite end of thespectrum to retributive justice, pointingout that advocates ‘display a remarkableuniformity in defining restorative justice byreference to what it is not, and this iscalled retributive justice’.58 She is criticalof the good/bad dichotomy in restorativejustice, which attributes ‘goodness’ to

negotiation and mediation, and ‘badness’to any form of adversarialism andretribution. In reality, Daly maintains,victims and other participants in restorativeconferencing were interested in ‘multiple’outcomes combing elements found onboth sides of the binary divide: includingelements of retributive, rehabilitative andrestorative forms of justice. They wantedto see the offender reprimanded for badbehaviour, encouraged to be law abidingand persuaded to make amends to thevictim.59

While traditional restorative justiceprinciples privilege community-basedalternatives to the mainstream system ofjustice, in practice there has been atendency to balance innovatory processessuch as conferencing and more traditionalsystems. This process can deliver checksand balances, where restorative forumsand judicial processes act to check eachother’s power, rather than the wholesystem being transformed into one inwhich informal justice forums trump judicialprocesses. McElrea sees the success of theNew Zealand Youth Court lying in itscapacity to act as a ‘back-stop’ toconferencing processes.60 WesternAustralia’s system of juvenile justice teamsallows for close partnership betweencourts and diversionary conferencing, andthe Children’s Court, itself, actively referscases for conferencing in WesternAustralia. Moreover, some models ofrestorative conferencing have beencriticised as being highly formalised andscripted events closely controlled byconference convenors.61

56. Bazemore G & Umbreit M, Guide forImplementing the Balanced andRestorative Justice Model: Report(Washington, DC: Office of JuvenileJustice and Delinquency Prevention,1998).

57. Walgrave L, 'Community Service as aCornerstone of a Systemic RestorativeResponse to (Juvenile) Crime' inBazemore G & Walgrave L (eds),Restorative Juvenile Justice: Repairingthe harm of youth crime (Monsey:Criminal Justice Press, 1999).

58. Daly K, ‘Restorative Justice: The realstory’ in McLaughlin E, Fergusson R,Hughes G & Westmorland L (eds),Restorative Justice: Critical issues(London: SAGE, 2003) 197.

59. Daly is also critical of the claim thatrestorative justice is synonymous withIndigenous justice practices.

60. McElrea FWM, ‘Restorative Justice: TheNew Zealand Youth Court, a model fordevelopment in other courts’ (1994)17(3) Public Sector 15.

61. Young R, ‘Just Cops Doing “Shameful”Business? Police-Led Restorative Justiceand the Lessons of Research’ in MaxwellG & Morris A (eds), Restoring Justicefor Juveniles: Conferencing, mediationand circles (Oxford: Hart Publishing,2001).


Therapeutic jurisprudence is a morerecent innovation than restorative justice.The term ‘therapeutic jurisprudence’ wascoined by Wexler and Winick and isconcerned with the potential role of lawand legal process as a therapeutic agent:it aims to ‘maximize therapeutic effectsof the law and minimize anti-therapeuticconsequences of the law’.62 Itacknowledges that the law can have aserious impact on the emotional andpsychological wellbeing of those involvedin legal processes – that it can have boththerapeutic and anti-therapeuticoutcomes. The notion of ‘therapeutic’ intherapeutic jurisprudence is a fairly simpleone. A therapeutic experience is positiveand encourages meaningful change, whilean anti-therapeutic experience is negativeand has adverse consequences for theactors involved. Therapeutic jurisprudenceexplores ways of maximising potentialbenefits. Proponents claim thatencounters with the legal system, likeencounters with the health system,should leave them better off, not worseoff, than before.63

Therapeutic jurisprudence sets out fromthe realisation that ‘[e]ncounters with thelaw can be personally devastating for theindividuals concerned and result inprofound psychological distress and socialdislocation’.64 In this respect theperspective echoes the sentiments of thefather of the problem-oriented approach,Herman Goldstein, in relation to contactbetween citizens and the police as oftenbeing devastating in its impact.65

Winick writes:

Therapeutic jurisprudence proposes theexploration of ways in which, consistentwith principles of justice and otherconstitutional values, the knowledge,theories, and insights of the mental healthand related disciplines can help shape thedevelopment of the law. Therapeuticjurisprudence builds on the insight thatthe law itself can be seen to function as akind of therapist or therapeutic agent.66

T herapeutic Jurisprudence

Courts employing a therapeuticjurisprudence approach would remainconscious of the positive and negativetendencies in the justice system and seekto minimise the negative tendencies. Theapproach encourages courts to adopt ananalytical stance in relation to the casescoming before them. Scott sees parallelsbetween therapeutic jurisprudence anddevelopments in public health:

There is a striking similarity as well betweenmany of TJ’s core principles and the lessonscoming out of the patient safety movementin health care. Both perspectives urgetaking a systemic approach to problems intheir respective arenas, be they medicalerrors or criminal behavior. Just as healthcare providers do a root cause analysisafter a medical mishap ... in order toprevent similar accidents … in the future,so do judges in problem-solving courtsapplying TJ principles seek to understandthe root causes of an offender’s behavior,to resolve the underlying psychologicalconditions or social circumstances that ledto that behavior, and thereby to preventfuture criminal behavior.67

Supporters of therapeutic jurisprudencesee the approach having a significantimpact on the way the justice systemoperates irrespective of the specific legalissue or variety of court. However, DeRosiers demonstrates how the‘therapeutic’ approach adopted by theSupreme Court of Canada to the questionof Quebec secession defused potentialconflict and paved the way for ongoingdialogue by recognising the complexity ofthe issues and the legitimacy of botharguments.68 Two key dimensions of thetherapeutic jurisprudence approach haverelevance, according to De Rosiers: firstly,the shift in emphasis in courts from ‘finalityto a process’; and, secondly, therecognition that many relationships, suchas those involving family members or, as inDe Rossier’s example, neighbouring ethniccommunities have continuity and shouldbe repaired and maintained rather thandamaged during adversarial court

62. Birgden A, ‘Therapeutic Jurisprudenceand Sex Offenders: A psycho-legalapproach to protection’ (2004) 16 SexualAbuse: A Journal of Research andTreatment 351, 351.

63. Winick BJ & Wexler DB (eds), Law in aTherapeutic Key: Developments intherapeutic jurisprudence (Durham:Carolina Academic Press, 1996); StolleDP, Wexler DB & Winick BJ (eds)Practicing Therapeutic Jurisprudence:Law as a helping profession (Durham:Carolina Academic Press, 2000).

64. Birgden A & Ward T, ‘PragmaticPsychology Through a TherapeuticJurisprudence Lens’ (2003) 9Psychology, Public Policy and Law 334,334.

65. Goldstein H, Problem-Oriented Policing(New York: McGraw-Hill, 1990).

66. Winick BJ ‘The Jurisprudence ofTherapeutic Jurisprudence’ (1997) 3Psychology, Public Policy and Law 184,185.

67. Scott C, ‘Book Review – Judging in aTherapeutic Key: Therapeuticjurisprudence and the courts’ (2004) 25Journal of Legal Medicine 377, 387–88.

68. Des Rosiers N, ‘From Tell ing toListening: A therapeutic analysis of therole of courts in minority-majority courts’(2000) 37 Court Review 54.


processes. De Rosiers argues that ‘courtsshould move from being magical “tellersof the truth” to becoming more process-oriented listeners, translators, educatorsand, if possible, facilitators.’69

This shift in emphasis regarding the roleof the court, from all knowing expert tolistener and facilitator, finds parallels in othercontemporary debates. What has becomeknown in recent years as the ‘strengths-based’ approach in social work, psychologyand counselling explicitly challenges theview that only professionals have theanswers and clients should remain passiveconsumers of expert knowledge:substituting this with the belief thatindividuals, families and communities havemany of the answers, given the right kindof support. The strengths-based approachoperates on the assumption that clientshave core strengths and resources as wellas deficiencies: strengths-basedapproaches attempt to understand theclient’s world view, and involves‘systematically examining survival skills,abilities, knowledge, resources and desiresthat can be used in some way to helpmeet client goals’.70 The aim ofintervention should be to empowerindividuals and groups to control theprocess of change.71 Corcoran and Pillaidescribe a strengths orientation thus:

Attention, rather than being focused onthe history of the problem, orients to afuture without the problem. Assessmentis focused on helping people visualize howthey would like their lives to be, identifyingtimes at which the solution (or part of it)has already happened, and figuring outwhat is needed to make the solution happenand keep it happening.72

This focus on ‘strengths and solutionsrather than problems and dysfunction’ hasbecome influential in approaches to socialwork with juvenile offenders.73

Therapeutic jurisprudence shares many ofthe ideals of strengths based intervention,being highly focussed on future possibilitiesrather than past mistakes.

While therapeutic jurisprudence has radicalaims in terms of reforming the ways thecriminal justice system responds toproblems in the community, it takes a fairlyconservative or traditional stance inrelation to the structure of the criminaljustice system. Unlike restorative justice,which, as we have seen has – at least intheory – a subversive relationship withcourt authority, therapeutic jurisprudencedoes not challenge the traditional authorityof the court. Indeed, it seeks to extendand modify rather than reduce the role ofjudges and magistrates, giving them agreater, rather than diminished, stake inwork of other court users. Judicial officersbecome more aware of the therapeuticand social needs of offenders; courtsacknowledge that communities aresignificant stakeholders but ultimate powerstill resides in the authority of court.Therapeutic jurisprudence aims to createa ‘collegiate’ system in the courts. Thetraditional goals of the sentencing takesecond place to processes designed to digdeep into the causes of offendingbehaviour and produce positive change.Therapeutic jurisprudence is, therefore,firmly in the business of law reform and ithas implications for the way a diversity ofcourts operate.74 In the therapeuticjurisprudence model sentencing emergesas a result of a ‘conversation’ betweeninterested parties rather than the productof a single, omnipotent, all knowingexpert. However, notwithstanding thismore discursive and conversationalapproach to the process of sentencing,in the last instance the court retains themonopoly on decision making, unlike therestorative justice model where theresponsibility is, in theory at least, sharedout amongst all conferencing participants.

Fundamentally, therapeutic jurisprudenceis geared towards making the existingsystem work better rather than replacingit with something else. It does not sharerestorative justice’s belief that enhancingthe quality of justice inevitably requiresreducing the role of professionals in the

69. Ibid 54.70. Rangan A & Sekar K, ‘Strengths

Perspective in Mental Health: Evidencebased case study’ (Paper presented atthe Conference on Strength-BasedStrategies, Hyderabad, India, 9–14November 2006); see also Blundo R,‘Learning Strengths-Based Practice:Challenging our personal andprofessional frames’ (2001) 82 Familiesin Society 296.

71. McKeown K, A Guide to What Worksin Family Support Services forVulnerable Families (Dublin: Ministerof State with Responsibi l i ty forChildren, 2000).

72. Corcoran J & Pillai V, ‘A Review of theResearch on Solution-FocusedTherapy’, British Journal of Social WorkAdvanced Access (September 2007)

73. Corcoran J, ‘A Solution-OrientedApproach to Working with JuvenileOffenders’ (1997) 13 Child andAdolescent Social Work Journal 277,277.

74. See discussions of the relevance of TJto Aboriginal Courts, InternationalCourts, Domestic and Family ViolenceCourts, etc, in Reinhardt G & CannonA (eds), Transforming Legal Process inCourt and Beyond: A collection ofrefereed papers from the 3rdInternational Conference on therapeuticjurisprudence, presented by theAustral ian Institute of JudicialAdministration in Perth, WesternAustralia on 7–9 June 2006 (Melbourne:Australasian Institute of JudicialAdministration Inc., 2007).


justice system; rather it seeks to makeprofessionals work in a more integratedand less adversarial fashion.

Therapeutic jurisprudence may also placeless emphasis on voluntary involvementin processes than restorative justice.Indeed, a degree of coercion is notinconsistent with therapeuticjurisprudence where this involves thecourt employing its arsenal of coercivepowers to lever offenders into treatmentoptions and ensure compliance withmandated programs.

A holistic approach

Therapeutic jurisprudence, has significantimplications for the working practices ofall agencies involved in the criminal justicesystem. A number of researchers/practitioners have welcomed the newapproach. Birgden sees therapeuticjurisprudence as offering an alternative tothe heavy preoccupation with riskassessment and risk management in thecorrectional field because of its ‘humanistic’approach. She focuses in her work on theimportance of integrating court andcorrectional strategies into holisticapproaches to offender rehabilitation. Theshift in the role of the judge/magistrate

towards one of enabling is complementedby the role of the corrections officer as afacilitator of behaviour change.75 In thisway, a therapeutic continuum connectscourt and non-court processes with eachpart engaged in a holistic process. Glasersees therapeutic jurisprudence resolvingan ethical dilemma for workers in sexoffender treatment programs.76

Increasingly, sex offender treatmentprograms require therapeutic staff toadopt coercive values and practices which‘cannot be reconciled with traditionalmental health ethics in any way.’77

Therapeutic jurisprudence, because itscommitment to the law as a therapeuticagent, promises a ‘law of healing’ andoffers a way of balancing the competingdemands of offender rehabilitation andcommunity safety.78

Cannon, however, sees the relationshipbetween courts employing therapeuticjurisprudence and community-basedcorrections and parole as a potentiallyproblematic one with potential ‘patchwars’ over resources.79 There will need tobe collaborative arrangements madebetween ‘services delivered under courtprograms and those by correctionaldepartments and communityorganisations’.80

75. Birgden A, ‘Therapeutic Jurisprudenceand Sex Offenders: A psycho-legalapproach to protection’ (2004) 16Sexual Abuse: A Journal of Researchand Treatment 351.

76. Glaser B, ‘Therapeutic Jurisprudence:An ethical paradigm for therapists insex offender treatment programs’(2003) 4 Western Criminology Review143.

77. Ibid 144.78. Ibid.79. Cannon A, ‘Therapeutic Jurisprudence

in the Magistrates Court: Some issuesof practice and principle’ in ReinhardtG & Cannon A (eds), TransformingLegal Process in Court and Beyond: Acollection of refereed papers from the3rd International Conference ontherapeutic jurisprudence, presented bythe Australian Institute of JudicialAdministration in Perth, WesternAustral ia on 7–9 June 2006(Melbourne: Australasian Institute ofJudicial Administration Inc., 2007) 136.

80. Ibid.


Braithwaite suggests that, despite somedifferences, restorative justice andtherapeutic jurisprudence share a numberof common traits.81 These include: aconcern with overcoming the tendencyfor offenders to deny the pain they haveinflicted on the victim; commitment toevidence-based practice; and a belief thatinnovative change can genuinely improveoutcomes for people (which Braithwaite– following David Wexler – calls ‘playingthe believing game’ rather than remainingwedded to negative critiques ofinnovations).82 He suggests that both arecommitted to a philosophy of ‘holism’,83

which he defines as a capacity to see eachindividual case as ‘many things at once,with respect for the dignity of all actorsinvolved’.84 Both restorative justice andtherapeutic jurisprudence require anengagement with the particulars of eachcase, placing problem solving ahead ofsimple punishment and he claims that bothrestorative justice and therapeuticjurisprudence represent a ‘return toproblem-oriented adjudication’.85

Braithwaite acknowledges differencesbetween restorative justice andtherapeutic jurisprudence on questions ofempowerment. Restorative justiceprivileges stakeholder empowerment overother elements of the process and is waryof paternalism in any form. The idealconference scenario is one whereprofessionals contribute to the process butare exempted from decision making. Thisvision is at odds with the therapeuticjurisprudence vision of the judge as a‘coach’. Braithwaite suggests that a keydifference lies in the degree of adherenceto existing judicial values. Therapeuticjurisprudence, he states, is concerned withdeveloping options that strengthen andare consistent with extant legal values,whereas restorative justice aims to bedeliberately transformative, in the senseof replacing existing legal principles andpractices with new ones.

Restorative Justice and TherapeuticJurisprudence: Areas of convergence

A revolution is needed in our legal systemthat substantially replaces adversariallegalism with Restorative Justiceinstitutions, where the role of the court issubstantially relegated to oversight of theinjustices of restorative processes, whichdo the real work of access to justice.86

Notwithstanding these reservations,Braithwaite sees complementaritybetween restorative justice andtherapeutic jurisprudence to the extentthat both reject retributivist solutions andpromote ‘active’ rather than ‘passive’ formsof accountability where offenders takeresponsibility for correcting past mistakesand restoring relationships.

Other professionals working within thetherapeutic jurisprudence area see parallelsbetween restorative justice andtherapeutic jurisprudence to the extentthat both are concerned with the ‘law’simpact on emotional life and onpsychological and social wellbeing’.87 Bothperspectives also share a concern withbalancing the needs of victims, offendersand society.88 Some magistrates, however,question whether therapeuticjurisprudence, as practised in Australianproblem-oriented courts is sufficientlyvictim-centred. Based on his experiencein South Australia, Deputy Chief MagistrateCannon argues that therapeuticjurisprudence tends to be offenderfocussed and inadequately deals with theharms caused to victims.89 Restorativejustice is better suited to address theneeds of victims because it places victimempathy at the centre of intervention.

Cannon suggests that the twophilosophies can work together and herecounts running a process of victimoffender mediation as part of the DrugCourt sentencing process.90 Victim-centredness may be the blind spot in thetherapeutic jurisprudence process. Victim-focussed restorative justice, whereoffenders deal directly with the victims ofcrime, may enhance the overalleffectiveness of problem-oriented courts,creating a more holistic process.

81. Braithwaite J, ‘Restorative Justice andTherapeutic Jurisprudence’ (2002) 38Criminal Law Bulletin 244.

82. Ibid.83. Ibid 245.84. Ibid 245–46.85. Ibid 246.86. Ibid 254.87. Sinclair I & Du Plessis A, ‘Domestic

Violence Adjudication in South Africa:A view on therapeutic jurisprudenceand human rights protection of thefemale victim’ in Reinhardt G & CannonA (eds), Transforming Legal Process inCourt and Beyond: A collection ofrefereed papers from the 3rdInternational Conference on therapeuticjurisprudence, presented by theAustral ian Institute of JudicialAdministration in Perth, WesternAustralia on 7–9 June 2006 (Melbourne:Australasian Institute of JudicialAdministration Inc., 2007) 11.

88. Ibid.89. Cannon A, ‘Therapeutic Jurisprudence

in the Magistrates Court: Some issuesof practice and principle’ in Reinhardt &Cannon, ibid 129.

90. Cannon A, ‘Therapeutic Jurisprudencein the Magistrates Court: Some issuesof practice and principle’ in Reinhardt &Cannon, ibid 135. Cannon recalls thatthe experience of one offender who wasso shocked when confronted with thehuman consequences of his offendingthat he relapsed on his drug program.


One key difference between restorativejustice and therapeutic jurisprudence isthat, while restorative justice attemptsto minimise the role of treatmentprofessionals (social workers,psychologists, probation officers, drug andalcohol workers, etc) in the resolution ofcrime related issues in favour of lay-people,the therapeutic jurisprudence orientedcourt continues to place a high premiumon professionally delivered treatmentoptions. Indeed, supporters oftherapeutic jurisprudence maintain thatit is the adoption of a multi-disciplinaryapproach and the capacity to holisticallyintegrate court processes and treatmentpractices that give therapeuticjurisprudence its unique flavour,91 withcourts becoming less focussed on legallanguage than on problem fixing and aconsequent blurring of the boundariesbetween the languages of therapy andlaw. One outcome is the increasing usein courts of new therapeutic languages—or meta-languages, as they tend tocombine elements from a number ofdifferent disciplines—as courts becomemore familiar with the treatmenttechniques in play within the agenciesaligned with the court, and as theseagencies become more conversant withthe needs of the court. In relation to thedrug courts in the United States andCanada, for example, Moore observed asignificant degree of ‘knowledgecrossover’92 between actors from differentprofessional backgrounds as each beganto ‘define their own work as markedlydifferent from the work done in traditionalcriminal courts’.93 One consequence of thisidentified by Moore was that ‘expertknowledge’ became ‘freed from expertactors’ so that, for example, judicialofficers increasingly began to employ thelanguage of psychology when dealing withaddicts in the court.94

The emergence of therapeuticjurisprudence and the problem-orientedcourt has favoured short-term therapiesthat fit in with the time-frames of the

court and promise speedy results. Twotechniques that have been influential inthe context of therapeutic jurisprudenceare motivational interviewing and briefinterventions.

The concept of ‘brief intervention’describes a range of treatments ratherthan one unified approach, all premised inthe belief that even very short-terminterventions—provided they occur at theoptimum moment—can have beneficialoutcomes. Brief intervention regimes cancash in on an offender’s motivation tochange as a result of being brought beforea court. Research suggests they workbetter than no intervention at all andsometimes work as well as more intensivetreatment.95 Moreover, they haveemerged to deal with clients who are notdirectly seeking help for an addictivedisorder (hence the attraction for courts)and can be delivered by non-specialisthealth professionals.

The common characteristic is thatintervention is restricted to a few sessionsat most. Brief interventions can take placein a number of settings and are notrestricted to the clinical setting. Someforms of intervention are heavily‘opportunistic’, meaning that the client hasnot requested help but is intercepted (incourt, for example, when court staff/drugworkers approach an offender facing non-drug related charges).96 Brief interventionsare open to the criticism that they arepaternalistic and based on the principlethat the professionals know best and thatclients will be grateful later. It is not aclient-centred approach.

Motivational interviewing emerged in thedrug and alcohol field and has been definedas a way of establishing dialogue withclients about the need for behaviourchange.97 Marsh and Dale describemotivational interviewing as a tool forincreasing client commitment to changetheir behaviour.98 Unlike classicalapproaches to dealing with clients which

91. Birgden A, ‘Therapeutic Jurisprudenceand Sex Offenders: A psycho-legalapproach to protection’ (2004) 16 SexualAbuse: A Journal of Research andTreatment 351.


93. Ibid.94. Ibid.95. Dunn C, Deroo L & Rivara FP, ‘The

Use of Brief Interventions AdaptedFrom Motivational Interviewing AcrossBehavioural Domains: A systematicreview’ (2001) 96 Addiction 1725.

96. Heather N, ‘Using Brief Opportunitiesfor Change in Medical Settings’ in MillerW & Heather N, Treating AddictiveBehaviours (New York: Plenum Press,2nd ed., 1998) 133.

97. Miller W & Rollnick S, MotivationalInterviewing: Preparing people forchange (New York: Guildford Press, 2nded., 2002).

98. Marsh A & Dale A, Addict ionCounselling: Content and process(Melbourne: IP Communications, 2006).

B rief Encounters: Treatment andthe Courts


tend to ‘seek to confront the client withreality’, motivational interviewing is patient-centered and collaborative: a‘conversation’ designed to enhancemotivation to change.99 Motivationalinterviewing may be delivered as a brief,stand-alone intervention or as a preludeto another treatment.100 The literatureindicated that motivational interviewingseemed to be better than no treatmentand comparable with alternativetreatments for sub-groups in the short-medium term. Further, motivationalinterviewing appeared to deliver effectscomparable to alternatives in considerablyless time, either as a stand-aloneintervention (for those with milderaddictive problems) or as a prelude toother treatments (for the moreproblematic addictions). One of theattractions of motivational interviewing isthat it can be delivered by non-clinicians.Professionals from a diversity ofbackgrounds (including legal professionals)can be trained in motivational interviewingtechniques to enhance clientunderstanding and increase theirmotivation to change. Fundamentally,motivational interviewing is based on thepremise that it is the client’s ownmotivation and desire to turn his or herlife around that is the crucial determinatein treatment. In this respect there isconsiderable overlap between motivationalinterviewing and strengths-basedapproaches to work with clients, asmentioned earlier. Both believe that clientshave core strengths as well as deficienciesand the goal of intervention should be tounlock and harness inherent strengths asa prerequisite for change.101

David Wexler suggests that motivationalinterviewing is being adopted in problem-oriented courts in the United States bylawyers as a way of moving away frompurely legal ways of relating to offenders

and clients, and positively engaging withtheir problems.102 Similarly, Birgden hasdeveloped a strategy for defence lawyersto apply motivational interviewingtechniques with offenders matched withchange readiness.103

In these examples the role of defencelawyers shifts from being primarilyconcerned with achieving the mostfavourable legal outcome for their clientsto becoming involved in changing the rootcauses of offending. The pay-off for clientsis that they receive genuine assistance todeal with problems such as addiction,homelessness and/or mental illness andmay do so in a community setting ratherthan a correctional institution. Briefinterventions and motivational interviewingare embedded in ‘stages of change’104

models of intervention. Offenders whocome before courts for non-addictionrelated offences and are not seeking helpfor their addiction will be considered asbeing at the earliest stages of change.

Therapeutic jurisprudence has also openedup space within the court for otherpotentially beneficial forms of treatment.Magistrate King (as he then was) in theGeraldton Magistrate’s Court took the leadin introducing transcendental meditationas a stress reduction and self-developmenttechnique for offenders with substanceabuse problems.105

Having reviewed a number of the issuesconnected with the background toproblem-oriented courts, some of theissues connected with a number ofproblem-oriented courts are brieflydiscussed below. This is not intended toprovide a definitive account of any oneform of problem-oriented court, rather toestablish the diversity of contexts in whichcourts operate.

99. Rol lnick S & Miller W, ‘What IsMotivational Interviewing?’ (1995) 23Behavioural and Cognit ivePsychotherapy 325.

100. Ibid.101. Turnell A & Edwards S, Signs of

Safety: A solution and safety orientedapproach to child protection casework(New York: Norton Press, 1999).

102. Wexler D, ‘Therapeutic Jurisprudenceand the Rehabilitative Role of theCriminal Defense Lawyer’ (2005) 17St Thomas Law Review 743.

103. Birgden A, ‘Therapeutic Jurisprudenceand Sex Offenders: A psycho-legalapproach to protection’ (2004) 16 SexualAbuse: A Journal of Research andTreatment 351.

104. Heather N, ‘Using Brief Opportunitiesfor Change in Medical Settings’ in MillerW & Heather N, Treating AddictiveBehaviours (New York: Plenum Press,2nd ed., 1998) 133.

105. King MS, ‘Geraldton AlternativeSentencing Regime: Applyingtherapeutic and holistic jurisprudence inthe bush’ (2002) 26 Criminal LawJournal 260. (The program ceased whenDr King left Geraldton in 2005.)


106. Wilson JQ & Kel l ing GL, ‘BrokenWindows: The police and neighbourhoodsafety’ (March 1982) 243 AtlanticMonthly 29.

107. For a critique of the zero toleranceapproach, see Dixon D & Maher L,‘Policing, Crime and Public Health:Lessons for Australia from the ‘New Yorkmiracle’’ (2005) 5 Criminal Justice 115.

108. Bayley D, Police for the Future (NewYork: Oxford University Press, 1994);Putnam RD, Bowling Alone: The collapseand revival of American community(New York: Simon & Schuster, 2000);Johnston L & Shearing C, GoverningSecurity: Explorations in policing andjustice (London: Routledge, 2003);Shearing CD, ‘Reinventing Policing:Pol ic ing as governance’ (Paperpresented at the Conference onPrivatisation: Retreat or proliferation ofstate control, Bielefeld, Germany, 24–26 March 1994).

109. Currie E, ‘Social Crime PreventionStrategies in a Market Society’ inNACRO, International Developmentsin Crime and Social Policy (London:NACRO, 1996).

110. Sviridoff M, Rottman D, Ostrom B &Curtis R, Dispensing Justice Locally: Theimplementation and effects of theMidtown Community Court (New York:Harwood Academic Publishers, 2000).

111. Kralstein D, Community CourtResearch: A literature review (Centrefor Court Innovation, 2005) <http://www.courtinnovation.org/_uploads/documents/ccresearch.pdf>.


Fixing Broken Windows:Community courts andcommunity building

American criminologists Wilson and Kellingproduced a highly influential article in themid 1980s arguing that urban social decaybegins when low level disorder is leftunchecked.106 Expressed simply, the‘broken windows’ thesis maintained thatrepeated minor ‘incivilities’, such as pettyvandalism (hence ‘broken windows’),antisocial conduct, graffiti, drug dealing,begging, prostitution, littering and fare-evasion, can initiate a spiral ofneighbourhood decline. Gradually, peoplelose confidence in their neighbourhood.Those who can move out of the area doso, less desirable groups take their place,drug dealers move in, abandoned andvandalised buildings becomecommonplace, local people feel powerless,and fear of crime becomes endemic. Toprevent the spiral of urban neighbourhooddecline, authorities must step in when thefirst window is broken rather than waituntil the process of decline is impossibleto check.

The broken windows thesis has becomefirmly associated with the zero tolerancemodel of policing, particularly as practisedby the New York Police Department,which explicitly sets out to clear thestreets of petty criminality in the beliefthat this would forestall more serious formsof offending.107 However, while muchattention was focussed on the policingimplications of the broken windows thesis,it also stimulated debate on the best waysof building community coherence throughforms of social crime prevention. A stringof new research and critical writingchallenged Wilson and Kelling’s overridingemphasis on law enforcement as theantidote to neighbourhood decline andidentified the importance of investing in‘social capital’ and undertaking processesof ‘community capacity building’ toestablish resilient communities and socialnetworks.108

Community courts have emerged as aresult of this kind of thinking. Unlike thezero tolerance model, premised on thebelief that all we need to do to preventcrime is to rigorously impose the law andpunish offenders, the approachacknowledges the need to change thesocial context109 in which offending takesplace and offer something—besidecensure and condemnation—to thoseplaced before the courts.

The community court is, in a number ofcrucial respects, the most challengingcourt system to establish, in that itrequires synergy with communitystructures rather than just collaborationbetween agencies. Community Courtsrequire ‘bottom up’ rather than ‘topdown’ processes, where priorities bubbleup from below rather than imposed fromabove. They are usually linked to somekind of community justice centre ratherthan stand alone courts. Communitycourts draw on the energies of local peopleand are often concerned with quality oflife issues in the neighbourhood; they placeemphasis on the input of lay people ratherthan judicial expertise.

The first community court was theMidtown Community Court opened as athree-year demonstration project in NewYork in 1993. The court covered TimesSquare and adjacent residentialneighbourhoods. The aim was to provideeffective and accessible justice for ‘qualityof life’110 offences such as prostitution,shoplifting, minor drug possession, turnstilejumping and disorderly conduct. The courtintended to forge closer links with thecommunity and develop a collaborativeproblem-solving approach to incivilities and‘quality-of-life’ offences. There are 27community courts in operation across theUnited States.111 Community courts tendto use sanctions such as communityservice but also focus on welfare needssuch as housing, health care, drugtreatment and job placement.112 Thecourts, according to Freiberg have astrong problem-solving role.

T he Development ofProblem-Oriented Courts


The problem-oriented features whichcommunity courts contain include anenhanced and ongoing judicial role inrelation to the defendant, the use by thecourt of extensive personal backgroundinformation relating to the offender, theemployment by the court of resourcecoordinators who bring together andmanage the legal and other servicesrequired to implement the sentence andthe location of treatment and otherproviders in the court precinct to provideimmediate assistance.113

Community courts are developing slowlyin Australia. There is a community court inDarwin, however, despite its title, theDarwin court fits more comfortably intothe Indigenous court model – being mainlyconcerned with Indigenous offenders andenjoying a particularly close relationshipwith the local Indigenous community. Thisis also the case in relation to the Kalgoorlie-Boulder Community Court which isfundamentally an Aboriginal Court inpractice.

A community court has been establishedwithin a new Neighbourhood JusticeCentre at Collingwood City in the city ofYarra (Victoria).114 Described as a ‘work inprogress’, it is intended to evolve over timeon the basis of collaboration with localagencies and residents, in relation to thechanging priorities of the dynamic localenvironment. The implementation modelhas not been arrived at in advance ofstrategies designed to embed the processlocally.

The aim of the Neighbourhood JusticeCentre is to

enhance community involvement in, andownership of, the justice system. It willrespond to, and engage with, thecommunity in addressing its issues andconcerns, thereby creating a justicesystem which, over time, is moreintegrated, responsive, accessible andmore effective in reducing crime,addressing the underlying causes ofcriminal behaviour and increasing accessto justice.115

The Neighbourhood Justice Centreintends to increase offenderaccountability; decrease the rate at whichorders are breached; improve communityoutcomes by increasing the amount ofunpaid community work undertakenlocally; increase the confidence of victimsand other participants; modernise thecourts by innovative local practice; andincrease community safety and offenderaccountability.116

A 20-member Community LiaisonCommittee was established involving localresidents, as well as traders and agencyrepresentatives. The role of thecommittee was to liaise with thecommunity; identify communityperceptions and expectations of theprocess; identify local crime, safety issuesand solutions; contribute to theNeighbourhood Justice Centre governanceprocess; have input into service deliveryand evaluation models; assess possible risksin the process; and contribute torestorative justice objectives.117 Theprocess places a strong emphasis on crimeprevention and on community eduction.The court is part of a holistic process. TheNeighbourhood Justice Centre provides aScreening, Assessment and Referral Team(SART) to gate-keep cases, focussing onthe needs and risks of offenders,118 andon pre-hearing problem solving andidentification of issues influencing offenderbehaviour. The SART assists courts infinding solutions based on mediation,volunteering and employment, and offerssupport to those at risk of enmeshmentin the system due to some form ofcomplex need. To be eligible for the court,offenders must reside in the Yarra area.The court does not hear committal cases,lengthy contested matters or serious sexoffences but does hear Children’s Courtmatters.119 Interestingly, the court alsodeals with civil as well as criminal matters.

113. Freiberg A ‘Problem-Oriented Courts:Innovative solutions to intractableproblems?’ (2001) 11 Journal of JudicialAdministration 8, 19.

114. The court was established under specificlegislat ion: Courts Legislat ion(Neighbourhood Justice Centre) Act 2006(Vic).

115. Department of Justice, TheNeighbourhood Justice Centre:Community justice in action in Victoria(Melbourne, 2007) 3.

116. Ibid 4.117. Ibid 5.118. The SART will take advantage of some

well established Victorian assessmenttools including the Good Lives Modeland the CISP Victorian InterventionScreening Assessment Tool.

119. Courts Legislation (NeighbourhoodJustice Centre) Act 2006 (Vic).


120. According to the official governmentwebsite, community justice in the UK isaimed at tackling ‘anti-social behaviourand the crime associated with it, makinglife better for everyone. Communityjustice brings the justice system andcommunities together, solving problems,reducing crime and building confidence’:see <www.communityjustice.gov.uk>.

121. Fiona, ‘Judge backs East MiddlesbroughCommunity Court’, Gazette Live, 26June 2007, <http://ts3.gazettelive.co.uk/2007/06/judge_backs_east_middlesbrough.html>.

122. See <www.communityjustice.gov.uk>.

123. Alan Milligan, Chair of the MagistratesCourt, Durham Region, consultation (11July 2007).

124. Loxley W, Toumbourou J, Stockwell T,Haines B, Scott K, Godfrey C, WatersE, Patton G, Fordham R, Gray D,Marshall J, Ryder D, Saggers S, Sanci L& Williams J. The Prevention ofSubstance Use, Risk and Harm inAustralia: A review of the evidence(Canberra: The National Drug ResearchCentre and the Centre for AdolescentHealth, 2004) 216.


126. Roberts L & Indermaur D, ‘TimelyIntervention or Trapping Minnows? Thepotential for a range of net-wideningeffects in Australian drug diversioninit iatives’ (2006) 13 Psychiatry,Psychology and Law 220.

Community justice courts –United Kingdom

Community Justice Courts are also beingdeveloped in the United Kingdom.Currently, eight schemes, based inmagistrates courts, are in operation acrossEngland and Wales modelled on the NewYork Red Hook scheme in the Bronx. Theyaim to reduce fear of crime and repeatoffending, speed up the court process,give communities a say in how offendersare dealt with, and enable magistrates toorder offenders back to court to keeptabs on progress. The schemesparticularly hope to have an impact onantisocial behaviour.120 A District Courtjudge involved in establishing the schemeexpressed confidence that courts of thisnature could have an impact on rates ofantisocial behaviour and improve themorale of local communities in a relativelyshort period of time.121 The courts areundergoing a process of evaluation.122

Schemes in North Liverpool and Salfordhave been subject to a qualitative inquirygauging the views of staff, communitymembers and offenders, which havetended to be positive. A more rigorousquantitative inquiry is also planned.Anecdotal evidence suggests that whilesome urban courts, such as in Liverpooland Manchester, are showing promise,others are struggling to find cases. This isbelieved to be because some courts havebeen poorly targeted, having beenestablished in relatively stable, low crimeareas, where most cases brought beforethe courts are for fixed penalty offences,or too serious to be eligible.123

Drug courts

Drug courts seek to intervene in the cycleof drug use, crime and prison by providingstrong incentives for offenders toundertake treatment. The first drug courtwas established in Dade County Florida in1989. There are currently over onethousand drug courts in the United States.Australian Drug Courts have been

described as providing an ‘extensivetreatment and rehabilitation program,undertaken with the supervision andongoing management of the court’.124

Drug courts in Australia have emerged aspart of a raft of strategies designed tominimise the harm caused by illicit drugs.The Council of Australian Governmentsintroduced the National Illicit Drug Strategyin 1999 which boosted resources for drugtreatment services and expanded its rolein the criminal justice area. A key plank inthe illicit drug strategy was that of‘diversion’, targeting drug users at an earlystage of involvement. ‘Diversionary’initiatives have been established at allstages of contact with the system – pre-arrest, pre-trail, pre-sentence, post-sentence and post-release. Drug courtscurrently operate in five Australianjurisdictions. The first drug courtcommenced in 1999 in New South Walesfollowed by South Australia (2000),Queensland (2000), Western Australia(2001) and Victoria (2002).125

Diversion in the context of drug relatedoffending differed from the varietygenerally in operation within the criminaljustice system, which was philosophicallygeared towards minimum intervention.Diversion in the context of drug use,however, was to be diversion intotreatment programs, not simply out of thesystem. Roberts and Indermaur suggestthat this difference underscored aphilosophical shift, influenced by healthprofessionals more concerned with gettingdrug users into treatment than simplyreducing the pressure on the criminaljustice system.126 It is open to debatewhether this approach is truly diversionary;that is, if diversion is defined in terms ofreduced contact with the criminal justicesystem.

The practice in Australian drug courts isto have a collegiate approach and ensurethat cases do not simply arrive in courtwithout preliminary discussion. Files andreports are placed in front of magistrates


before court sits. There are conferenceswith prosecution, defence counsel anddrug staff in the absence of the defendantto arrive at a position before court begins.Indermaur and Roberts suggest that theintroduction of drug courts in Australiaduring the 1990s was not based upon anyfirm evidence of effectiveness, ‘butbecause they represented an idea whosetime has come’.127 Much of the researchon drug courts has been American andtypically focussed on serious offendersfacing imprisonment and may have limitedapplicability to the Australian context.128

Overviewing the current state of drugcourts in Australia, Indermaur and Robertsidentify a number of issues. Where tolocate ‘drug court on the diversioncontinuum and which group of offendersto target’ is the major difference betweenjurisdictions; there is some confusion asto whether the courts are ‘a form of “early”intervention or a “last chance” for anoffender before imprisonment’.129

Indermaur and Roberts also argue that,while much of the rhetorical support fordrug courts focuses on reducing contactwith costly imprisonment, the reality is thatthey are situated in magistrates courtswhich tend to generally produce non-custodial outcomes.130 While there isjustification in capturing individuals whoseoffending behaviour is not sufficientlyserious to merit incarceration, it does alsoraise serious risks of net-widening: ‘Thetemptation will be to reach into the vastsupply of “needy” cases to provide helprather that [sic] use the drug court as analternative to custody’.131 This is particularlyproblematic because the drug court is ahighly intrusive option. They agree thatdrug courts show promise; however, theyargue that more work needs to beundertaken to identify ‘which groups ofoffenders are best served by thisapproach’.132 They express concern aboutthe net-widening risks with the BriefIntervention Regime in the Perth DrugCourt which ‘deals with cannabis offenders,some facing only their second charge forsimple possession’.133 On the other hand,

supporters of the Perth Drug Court canpoint to a degree of variegation andflexibility in the system which allows forthe management of less serious cases(through the Drug Court Regime) and thePre-sentence Order for offenders facinga custodial sentence.

Indermaur and Roberts are not alone,however, in expressing concerns aboutthe net-widening potential of drug courts.Scholars in the United States and Canadahave questioned whether innovations suchas drug courts have improved the qualityof life of drug addicts or simply intensifiedand tightened social control over them.134

Moore argues that the ‘therapeuticenterprise has decidedly punitive effects,amplifying control and erasing protectionsin the name of curing the offender’.135

While acknowledging that drug courts area clear improvement on the rhetoric ofthe ‘war on drugs’ and over-reliance onimprisonment that characterised Americanpolicy in the 1990s, Moore maintains thatdespite their appeal and the fact that theyoffer some genuinely positive measures foraddicts (such as access to health care andother social services) they

maintain the same old practices of justiceand punishment, only now they are knownby different names. Detention translatesinto therapy, a warrant is now an incentiveand appearance in a criminal court achance to process a drug-use relapse.Translating these practices into a networkwith a broader curative goal does not erasetheir punitive, disciplinary intentions oreffects.136

Domestic violencecourts

Family and Domestic Violence Courtsemerged as a means of streamlining justiceprocesses, ensuring that perpetrators areheld to account, increasing victim safetyand reducing the tendency of the justiceprocess to be the cause of furthervictimisation. As in other areas of problem-

127. Indermaur D & Roberts L, ‘Drug Courtsin Australia: The first generation’ (2003)15 Current Issues in Criminal Justice136, 137.

128. Hall W, ‘The Role of Legal Coercion inthe Treatment of Offenders with Alcoholand Heroin Problems’ (1997) 30Australian and New Zealand Journal ofCriminology 103.


130. The picture however may not be sosimple. The Perth Drug Court does alsoaccept referrals from the District Courtand Supreme Court.


132. Ibid 147.133. Ibid 144.134. Nolan J, Reinventing Justice: The

American drug court movement(Princeton: Princeton University Press,2001); Fischer B, Roberts J & Kirst M,‘Compulsory Drug Treatment inCanada: Historical origins and recentdevelopments’ (2002) 8 EuropeanAddiction Research 61.


136. Ibid 57.


oriented intervention, family and domesticviolence courts emerge on the back ofcriticism that traditional courts oftenmishandled cases of family violence. Thereis considerable literature critical of thecriminal justice system’s response todomestic violence. Critics have pointed toa tendency not to take family anddomestic violence issues seriously, a highattrition rate in prosecutions, a lack ofcoordination between agencies, and ashortage of appropriate victim services.137

Courts, according to Ursel, have neededto reconsider how they measured‘success’ in family and domestic violencecases.138 She suggests that while thecriminal justice system in general respondsrobustly and swiftly in the area of crisisintervention in discrete cases of violence—which may be critical in preventingdomestic homicide—it is less successful atchecking the cycle of abuse. This isbecause violence is often systemic ratherthan episodic. Traditional models of crisisintervention and adjudication mistakenlyassumes that victims share the same goals(ie, prosecution and punishment) as thecriminal justice system. The criminal justiceprocess, she maintains, is blind to manypainful aspects of the victim’s situation,which can encompass divorce, childcustody and property issues, long delaysin hearing matters, and ineffectivetreatment options.139

Ursel calls for a different approach:

A single police response, courtappearance or stay in a women’s shelterdoes not miraculously change the complexweb of love, fear, dependency andintimidation woven into the fabric of anabused woman’s life … If we change thegoals of intervention from conviction (aone-dimensional outcome) to redressdangerous power imbalances (a complexprocess of empowerment), then possiblythe criminal justice system could offerwomen at risk meaningful intervention.140

Family violence courts in Australia arecourts specifically designed to improve

137. For a review, see Holder R, ‘Domesticand Family Violence: Criminal justiceinterventions’ (2001) Austral ianDomestic and Family ViolenceClearinghouse, Issues Paper No. 3.

138. Ursel J, ‘Can Specialised Courts MeetVictim Needs For Justice? The case forfamily violence courts’ (Paperpresented at a seminar of theQueensland Centre for Domestic andFamily Violence Research, Mackay, 13April 2004), <http://www.noviolence.com.au/janeursel.html>.

139. Holder R, ‘Domestic and FamilyViolence: Criminal justiceinterventions’ (2001) Austral ianDomestic and Family ViolenceClearinghouse, Issues Paper No. 3.

140. Ursel J, ‘Can Specialised Courts MeetVictim Needs For Justice? The case forfamily violence courts’ (Paperpresented at a seminar of theQueensland Centre for Domestic andFamily Violence Research, Mackay, 13April 2004), <http://www.noviolence.com.au/janeursel.html>.

141. Stewart J, ‘Specialist Domestic/FamilyViolence Courts within the AustralianContext’, Australian Domestic andFamily Violence Clearinghouse, IssuesPaper No. 10 (2005).

142. Ibid 4.143. Sinclair I & Du Plessis A, ‘Domestic

Violence Adjudication in South Africa:A view on therapeutic jurisprudenceand human rights protection of thefemale victim’ in Reinhardt G & CannonA (eds), Transforming Legal Process inCourt and Beyond: A collection ofrefereed papers from the 3rdInternational Conference on therapeuticjurisprudence, presented by theAustral ian Institute of JudicialAdministration in Perth, WesternAustral ia on 7–9 June 2006(Melbourne: Australasian Institute ofJudicial Administration Inc., 2007) 12.

144. Goldberg S, Judging for the 21stCentury: A problem-solving approach(Ottawa: National Judicial Institute,2005).

145. Erez E & Copps Hartley C, ‘BatteredImmigrant Women and the LegalSystem: A therapeutic jurisprudenceperspective’ (2003) 4 WesternCriminological Review 155.

victims’ experiences of the justice systemand use the authority of the court todirect offenders into treatment. Domesticand family violence courts acknowledgethat the problems underpinning domesticviolence are multiple and complex, andoften require multi-level and multi-agencyforms of intervention and support.141

Family and domestic violence courts differfrom other problem-oriented courtsaccording to Stewart in that they privilegevictim safety and victim centredness overother considerations,142 while otherproblem-oriented courts tend to favouroffender wellbeing. While there is nounified model of a family and domesticviolence court, they tend to have anumber of common characteristics: theyhave—or should have—a suite oftreatment and referral options available forboth victims and offenders, and be basedon a high level of inter-agency coordinationto ensure timely and appropriateintervention.

Some working within the domesticviolence area in courts see a positive rolefor therapeutic jurisprudence in creatinga court environment concerned with anintegrated approach, balancingaccountability, reintegration and the safetyneeds of victims.143 Commentatorsacknowledge that therapeuticjurisprudence can have relevance to thework of family and domestic violencecourts because of its commitment topositive change and rehabilitation aslegitimate goals of justice intervention.144

Therapeutic jurisprudence has beenrecommended as an approach to theneeds of women experiencing domesticviolence in the United States.145 Theapproach, according to Erez and CoppsHartley, may increase cultural sensitivity towomen from minority and immigrantbackgrounds and minimise some of theanti-therapeutic tendencies of courts: thecurrent system is not sufficiently sensitiveto the distinct cultural needs of victimsfrom immigrant backgrounds.


[T]he current structures of investigation,lack of translators, criminal justice actors’misunderstanding of cultural issues, andconcerns about immigration status requirebattered immigrant women to engage inculturally incongruent activities in order toobtain relief. Such culturally conflictinginteractions can create anti-therapeuticeffects for these women, thereby reducingtheir current and future use of thesystem.146

On the other hand, there has beenconsiderable debate about the relevanceof restorative justice to gendered violencerelated cases, particularly where the stresson informality may allow offenders to re-victimise in informal justice meetings.147

The Joondalup Family Violence Court inWestern Australia was launched in 1999and it deals with civil matters for restrainingorders (both violence and misconductrestraining orders) and all criminal mattersrelated to domestic violence. There arenow family violence courts in Rockinghamand Fremantle and there are plans toextend them to Midland, Armadale andPerth in 2008. A specialist magistrate,prosecutor and defence counsel areattached to the court. The accusedreceives legal advice prior to agreeing toparticipate in the perpetrator program. Amulti-agency Case Management Teamcomprised of various stakeholders such asthe Police, Department of CommunityDevelopment, Community Justice Service,Relationships Australia, Pat Giles Women’sCentre and Victim Support Services lies atthe core of the service.148 The teammaintains an assessment process onoffenders diverted into domestic violenceuser groups and prepares a pre-sentencereport. Interestingly, the magistrate doesnot participate in the group, unlike in thedrug court model. The magistrate doesnot have an up-front ‘case management’role: programs for offenders tend to lastsix months and the offender reappearsbefore the magistrate after being on theprogram for three months to assessprogress.149 This is in sharp contrast with

the Perth Drug Court where themagistrate chairs the Case ManagementTeam and the offender appears on aweekly basis and is directly answerable tothe magistrate. Perhaps this illustrates thecore differences between the two typesof problem-oriented court. The drug courtis directly, almost exclusively, focussed onintervention with offenders to changebehaviour, while the family and domesticviolence court has a more diffuse focuson victim safety and offenderrehabilitation.

Mental health courts

Mental health courts were first establishedin the United States: in Florida in 1997and in Washington, Alaska and Californiain 1999. They are designed to betherapeutic problem-solving courtsattempting to alleviate some of theproblems posed for mentally ill defendantscharged with criminal offences.150 Thesecourts recognise the vulnerability of thementally ill to enmeshment in the criminaljustice system and the fact that thesystem, particularly gaol, rarely has apositive effect and tends to exacerbatemental illness. The majority of these courtsdeal with misdemeanours only and attemptto provide speedy intervention oncesomeone is charged. The court providesintensive supervision, relying on a teamapproach between prosecution, defenceand treatment staff, with the judgeoccupying a central role. There is currentlyno mental health court in WesternAustralia.

In the South Australian Magistrates CourtDiversion Program, the term ‘mentalhealth’ has been avoided to circumventstigmatising users. Established as a pilot in1999, the scheme is to be given alegislative footing. The program began inresponse to the realisation that manyindividuals arrested by the police and beingdetained in prison suffer from a mentalillness, and become caught up in arevolving door. A situation exacerbated by

146. Ibid 166.147. Stubbs J, ‘Restorative Justice, Domestic

Violence and Family Violence’ (2004)Austral ian Domestic and FamilyViolence Clearinghouse, Issues PaperNo. 9.

148. Urbis Keys Young, Research into GoodPractice Models to Facilitate Access tothe Civil and Criminal Justice Systemby People Experiencing Domestic andFamily Violence, Final Report(Canberra: Office of the Status ofWomen, 2002).

149. Department of Justice, JoondalupFamily Violence Court, Final Report(February 2002). I am also grateful toSuzie Ward for observations of theJoondalup Court in operation.

150. University of Alaska Anchorage, ‘TheCourt Coordinated Resources Project –Mental Health Court in Alaska’ (2002)18(4) Alaska Justice Forum 1.


the shift away from institutions tocommunity care which has led to increasedhomelessness and reduced access totreatment.151

As with other problem-oriented courts,concerns have been expressed about thelack of a credible evidence base in themental health court area supporting thiskind of intervention in the UnitedStates.152 There have been concerns thatsuch courts have suffered from a lack ofresources – there has not been the levelof investment in mental health courts asthere has been in drug courts.153 Otherresearch in the United States, however,indicates that mental health courts areless likely than drug courts to use thesanction of gaol as leverage for gettingoffenders into treatment, or as a sanctionwhen conditions are breached.154 Existingresearch suggests that a multi-disciplinaryapproach involving all key players isessential to successful work in this field.Courts researched in the United Stateswere considered to be working along thelines of therapeutic jurisprudence becausethey were genuinely focussed on theneeds of individual offenders and wereaware of due process issues.155 There havebeen consistent concerns that mentalhealth courts have the potential tocriminalise mentally ill people committingminor offences in the name oftreatment.156

151. Hunter N & McRostie H, MagistratesCourt Diversion Program: Overviewof key data findings (South Australia:Office of Crime Statistics, 2001).

152. Steadman HJ, Davidson S & BrownC, ‘Law and Psychiatry: Mental healthcourts: Their promise and unansweredquestions’ (2001) 52 PsychiatricServices 457.

153. Ibid 458.154. Griffin PA, Steadman HJ & Petrila J,

‘The Use of Criminal Charges andSanctions in Mental Health Courts’(2002) 53 Psychiatric Services 1285.

155. Watson A, Hanrahan P, Luchins D &Lurigio A, ‘Mental Health Courts andthe Complex Issue of Mentally IllOffenders’ (2001) 52 PsychiatricServices 477.

156. Lamb HR, Weinberger LE & Reston-Parham C, ‘Court Intervention toAddress the Mental Health Needs ofMentally Ill Offenders’ (1996) 47Psychiatric Services 275.


There is no doubt that the problem-oriented approach has far reachingimplications for the role of the judicialofficer and other court users. These courtsextend the sphere of judicial responsibilityand potentially bring magistrates into closercontact with victims, offenders and othercourt-related agencies. Magistrates haveto acquire new skills, including anunderstanding of the treatment languagesthat go along with the particular problemthe court has been established to address;a capacity to manage inter-agencydialogue, and an ability to remain engagedwith cases. They also requireunderstanding of the rudiments oftherapeutic jurisprudence and restorativejustice, as these philosophies underpin theshift in the court role. Problem-orientedcourts require sophisticated arrangementsto manage these new demands. Theyhave prompted the creation of new courtliaison staff to interface betweenmagistrates/judges, other agencies andcommunities. The quality of this interfacework may hold the key to successfulproblem-oriented work.

The shift in role for magistrates requiresconsiderable commitment. The localmagistrate may become not simply a‘coach’ but the commanding officer of asmall inter-agency steering committeecomprising the magistrate, court staff,lawyers, community corrections officers,treatment agencies and police workingcollaboratively on a specific issue.Innovations in Western Australia, such asthe Geraldton Alternative SentencingRegime (GASR) in the GeraldtonMagistrates Court—a variety of drug courtthat operated in Geraldton in the early20002, under Magistrate King—illustratethat these initiatives are labour intensive.Establishing GASR required the magistratebecoming involved in ‘consciousnessraising’, establishing a number of steeringgroups, empowering agencies to own theproject, struggling for resources, andmaintaining local commitment.157 Indeed,King and Piggott liken the process ofworking with the agencies to theprocesses involved in therapeutic

Issues for Judges and Magistrates

jurisprudence itself – in both instances thecourt has to take the lead in promotingchange by involving parties in decisionmaking and resolving problems.158 Manycourt professionals may have reservationsabout King and Piggot’s notion of themagistrate as therapist, but they illustratethat managing a problem-oriented courtrequires that the magistrate takes aproactive stance in terms of mobilising localresources and drawing together a localsupport system. It involves consensusbuilding, negotiation and consultation. Ittransforms the role of the magistrate andcourt staff159 – magistrates step overtraditional boundaries betweenthemselves and other agencies.

Drug court magistrates appear to beamongst the most proactive andinterventionist. However, even in thesecourts some magistrates have struggledto gain control over the system. Anevaluation in Queensland found:

Our consultations with the Magistrates …revealed that they had limited, if any,knowledge of the overall compliance ofoffenders with the requirements of theprogram, or of the impact of the programon participants’ drug taking and relatedbehaviour. The large majority ofMagistrates indicated that they would liketo receive such information on a regularbasis, and considered that this would informtheir knowledge of and support for theprogram.160

Magistrates adopting a case managementapproach may also find they need to beinvolved as change managers in relationto local practices which inhibit thedevelopment of a problem-orientedapproach. That is, they may need to takethe lead in convening inter-agencymeetings and ensuring that policies areconsistent with the aims of the problem-oriented court. For example, a review ofa court-based drug diversion project inWestern Australia found that themagistrate’s adoption of a hands-onmanagement role with offenders alienatedsome correctional staff who felt thattraditional offender management wasbeing compromised in the name oftreatment.161

157. King MS & Piggott L, ‘Mirroring theStages of Change in the Establishmentof Problem Solving Courts’ in ReinhardtG & Cannon A (eds), Transforming LegalProcess in Court and Beyond: Acollection of refereed papers from the3rd International Conference ontherapeutic jurisprudence, presented bythe Australian Institute of JudicialAdministration in Perth, WesternAustralia on 7–9 June 2006 (Melbourne:Australasian Institute of JudicialAdministration Inc., 2007) 161.

158. Ibid 169.159. Cannon A, ‘Therapeutic Jurisprudence

in the Magistrates Court: Some issuesof practice and principle’ in Reinhardt &Cannon, ibid 135.

160. Queensland Health, Evaluation ofQueensland Illicit Drugs Court DiversionProgram, Final Report (July 2005)[6.1.4].

161. See UWA Crime Research Centre, WADiversion Program – EvaluationFramework (POP/STIR/IDP): FinalReport for the Drug and Alcohol Office(Perth, 2007) 63–64 & 76.


A problem-oriented approach requireswillingness on the part of participants incourt processes to break with sometraditional beliefs about their role andembrace a more collegiate style ofworking. Wexler,162 and Winnick andWexler,163 suggest that as interest mountsin therapeutic jurisprudence a range ofcourt users are recognising the benefitsof the approach and are willing to adopta more holistic stance. Defence lawyers,for example, increasingly attend to theirclient’s long term interests rather thansimply see their role in terms of reducingany possible penalty. Winick and Wexlerdescribe a ‘new model’ of work for lawyerswhich

contemplates lawyers practicing with anethic of care and heightened interpersonalskill, who seek to prevent legal difficulties… for their clients through sensitivecounseling [sic], advance planning,creative problem solving, careful drafting,and the use of alternative disputeresolution techniques. In recent years,this emerging model has begun topenetrate legal education.164

Wexler notes that some defence lawyersin the United States are refusing torepresent clients, such as those repeatedlycaught driving under the influence, unlessthey agree to a therapeutic jurisprudenceapproach, accept responsibility for theiractions and undertake treatment foraddiction, although there is no evidenceto suggest that this practice is not beingreplicated in Australian courts at thisstage.165 The role of the defence lawyershifts towards a search for an outcomethat would improve the likelihood of clientsnot returning to court due to the fact

162. Wexler D, ‘Therapeutic Jurisprudenceand the Rehabilitative Role of theCriminal Defense Lawyer’ (2005) 17 StThomas Law Review 743.

163. Winick BJ & Wexler DB (ed), Judging ina Therapeutic Key: Therapeuticjurisprudence and the courts (Durham:Carolina Academic Press, 2003).

164. Winick BJ & Wexler DB (ed), ‘The Useof Therapeutic Jurisprudence in LawSchool Clinical Education: Transformingthe criminal law clinic’ (2007) 13 ClinicalLaw Review 605, 605–606.

165. Wexler D, ‘Therapeutic Jurisprudenceand the Rehabilitative Role of theCriminal Defense Lawyer’ (2005) 17 StThomas Law Review 743, 744. Thismay reflect the current legal culture ofthe USA and may be not be applicableto the Australian situation. On the otherhand some legal scholars in Australiasee an emerging interest in the adoptionof an ‘ethics of care’ by Australianlawyers: see Evans A & Parker C,Inside Lawyers’ Ethics (Cambridge:Cambridge University Press, 2007).

166. Wexler, ibid 747–49; see also Clark M,‘A Change-Focused Approach for Judges’in Winick BJ & Wexler DB (ed), Judgingin a Therapeutic Key: Therapeuticjurisprudence and the courts (Durham:Carolina Academic Press, 2003) 137.

167. Wexler, ibid 748.168. Carson D, ‘Therapeutic Jurisprudence

and Adversarial Injustice: Questioninglimits’ (2003) 4 Western CriminologyReview 124.

169. Slobogin C, ‘Therapeutic Jurisprudence:Five dilemmas to ponder’ in Winick BJ& Wexler DB (eds) Law in a TherapeuticKey: Developments in therapeuticjurisprudence (Durham: CarolinaAcademic Press, 1996).

170. See eg ‘What Makes Drug CourtsSucceed or Fail?’, Drug Policy ResearchCentre Newsletter (June 2000),<www.reconsider.org/issues/drug_court/interesting_facts.htm>.

W hat’s in it for Other Court Users?

the problems underlying offending havenot been dealt with. Increasingly inAmerican problem-oriented courts,defence lawyers assemble a rehabilitationpackage to present either to theprosecution in the process of pleabargaining or to the judge at sentencing.Wexler argues that defence lawyers, alongwith judges and probation officers, shouldbecome ‘change agents’ and adopttechniques that will create positivechanges in behaviour.166 These kinds ofchanges require that the language of thecourt is modified to accommodate anarrative style of communication, allowingclients to tell their story ‘unconstrainedby rigid notions of legal relevance’.167 Thereare a number of barriers to the creationof a this kind of therapeutic environment,not least of which is the adversarial natureof the criminal justice system. Carson168

and Slobogin,169 for example, point toinherent tensions between therapeuticvalues and the rough and tumble of thetrial process which, in some instances, hasdecidedly anti-therapeutic effects.

In the problem-oriented court judges andmagistrates are given greater leverage andinvolvement in the change process. Thejudge becomes the conduit and channelfor information and decision-makingprocesses that might previously haveremained the secret domain of agenciesand their clients; hence, the concernexpressed in relation to drug courts in theUnited States that they have compromisedpatient/health provider confidentiality andthat the court system is now the real clientnot the person receiving treatment.170


Discussion in the United States has alsoshifted towards the integration of theproblem-solving approach into mainstreamcourts. Research by the Centre for CourtInnovation with groups of professionalsworking within problem-oriented courtsfound guarded optimism about integratingthe problem-solving approach intomainstream courts.171 The professionalsbelieved that the judges in all types ofcourts could adopt a more proactivestance – ask more questions, link withservice providers, and delve deeper intounderlying issues. They would then be ina better position to tailor more relevantcourt orders. Judges could alsocommunicate and engage directly withdefendants (rather than through counsel)as they do in problem-oriented courts,encourage greater integration of socialservices into the court system, requiredefendants on mandated orders to reportback to the court, and, moreproblematically given the potential tocompromise defendant’s rights, adopt amore team-based and non-adversarialapproach.172 Participants also noted twokey barriers to the dissemination ofproblem-oriented techniques intomainstream courts: firstly, judges workwithin time constraints that would inhibita problem-centred approach; andsecondly, most courts lack the technology,resources and staff required to operate ina problem-oriented style.173

171. Farole DJ, Puffett N, Rempel M & ByrneF, ‘Applying the Problem-SolvingModel Outside of Problem-SolvingCourts’ (2005) 89 Judicature 40, 41.

172. Ibid.173. Ibid.

Problem-Oriented Approach in Other Courts


Problem-oriented courts are becoming anaccepted feature of the criminal justicesystem in Australia and their influence issteadily growing. Nevertheless, theevidence base remains shallow and thereis a need for more intensive longitudinalstudies focussed on both processes andoutcomes. Longer term studies aroundrecidivism, re-offence frequency,desistance from crime and/or harmfulbehaviours and community reintegrationare required. In the case of communitycourts there would also need to beresearch focussed on community harmonyand the extent to which neighbourhoodsfeel like safer, better places to live inbecause of the community court and thejustice centre. Long term processevaluations are required to gauge theimpact of the court on the broader justicesystem: Has it stimulated better inter-agency collaboration? Are courts easierplaces to access? Do victims, witnessesand communities of care feel moreaccepted than in other courts? Has thequality of local services for victims andoffenders improved because of courtinterventions? Has the creation of ahomelessness court, for example,stimulated greater awareness of theproblems facing homeless and itinerantpeople and has government stepped into improve services locally? An importantissue—and one experienced particularly inrelation to drug courts—relates to thebalance between treatment and dueprocess. There are serious problemsrelated to the net-widening impact ofintrusive treatment programs targeted atminor offenders, where the likelihood isthat ‘failure’ in treatment will result inincreased criminalisation. This placespressure on courts to ensure that net-widening is minimised.

There are a number of cultural differencesbetween the United States of Americaand Australia. While courts have beenunder pressure in Australia to respond tosocietal problems, it is doubtful that theywere ever expected to be the ‘frontline’

C onclusion

response to crime and fix intractable socialproblems as were their Americancounterparts. Australia has always had amore social democratic approach in termsof the provision of social services, enjoysa wider network of government welfareorganisations and has been less influencedby ‘neo-liberal’ justice policies based onreduced state intervention andindividualism.174 In the drug area there hasbeen more of a harm minimalisationapproach. There is a strong chance thatproblem-oriented courts may enjoy moresuccess in Australia due to the wider arrayof support and treatment options alreadyopen to Australian courts, although theymay struggle in rural and remote areaswhere infrastructure is lacking and servicesthin on the ground – a problem alreadyidentified in relation to court-based drugdiversion projects in Western Australia.175

The philosophies of restorative justice andtherapeutic jurisprudence provide arationale for the problem-oriented courts’less adversarial and more forward lookingapproach. However, there will remain areasof tension between the two approaches:restorative justice views itself as a socialmovement, not a brand of justice reform,and restorative justice purists may haveconcerns about a tendency towardspaternalism within therapeuticjurisprudence. On the other hand,supporters of therapeutic jurisprudencemay be alarmed by the excessive focuson communal empowerment in restorativeprocess and the potential for denial of dueprocess and outright ‘mob rule’. Theliterature, however, suggests thatprofessionals working in and aroundproblem-oriented courts cheerfully borrowand mix ideas from both camps toconstruct a new meta-language. Thislanguage picks up on restorative justice’scommitment to resolving the human—rather than just the legal—consequencesof offending while remaining positive aboutthe capacity of the courts and existingstructures to play a leading role in theresolution of complex social issues.

174. O’Malley P, ‘Globaliz ing Risk?:Distinguishing styles of ‘neo-liberal’criminal justice in Australia and theUSA’ (2002) 2 Criminal Justice 205.Neo-liberal social and economic policiesgeneral ly support l imited stateintervention, reduced access to stateprovided welfare and free markets.

175. UWA Crime Research Centre, WADiversion Program – EvaluationFramework (POP/STIR/IDP): FinalReport for the Drug and Alcohol Office(Perth: Drug and Alcohol Office, 2007).

problem-oriented courts · research paper, lrcwa project no. 96 3 emerged in response to claims...

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