Black, White or Grey:Therapeutic Jurisprudence and Solution-Focused Courts

Hon. Peggy Fulton HoraJudge of the Superior Court of California (Ret.)Community Legal Centres Tasmania14-15 November 2013

Judge Sonia Sotomayor, a judge with “empathy” and “heart.”

“The safe thing to do is to sit on the bench and administer justice. The risky thing to do is to balance mercy with justice, compassion with rules.” Judge Juanita Stedman

Therapeutic Jurisprudence Can we reduce

the anti-therapeutic consequences

Enhance the therapeutic ones

Without subordinating due process and other justice values?Slobogin, Christopher, “Therapeutic Jurisprudence: Five Dilemmas to Ponder,”

1 Psychology Public Policy and the Law 193 (1995)

Therapeutic Jurisprudence (TJ) in the Justice Setting

Can we enhance the likelihood of desired outcomes and compliance with judicial orders by applying what we know about behavior to the way we do business in court

Comprehensive Law Movement

1. Seeks to maximize emotional, psychological and relational wellbeing of those involved with legal matters

2. Focuses beyond strict legal rights,

responsibilities, duties, obligations and entitlementsDaicoff, Susan, “Law as a Healing Profession: The ‘Comprehensive Law Movement’,”

6 Pepperdine Dispute Resolution Law Journal 1 (2006)

Collaborative Judges

Judges believe they can and should play a role in the problem-solving process

Outcomes matter--court is not just based on a process and precedent

Adela

ide T

hin

ker in

Resid

ence

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

Collaborative Courts

Recognize the therapeutic potential of the court’s coercive powers

Finds “Judicial Leverage” is an appropriate tool

Adela

ide T

hin

ker in

Resid

ence

Collaborative Change

Courts

Probation, CPS, &

Corrections

Treatment&

Intervention

P-S Principles and Methods1. Reduce recidivism in criminal

cases2. Save incarceration and other

costs of social services, e.g., foster care

3. Have great public support4. High participant satisfaction

(procedural justice)5. High judicial satisfaction

What’s in a name?

Drug court Drug treatment court Sobriety court DWI court Healing-to-Wellness court Family treatment court Collaborative court (CA) Non-Adversarial Justice (HI)

Solution-Focused Courts in Australia

The processes the court uses to develop solutions--therapeutic, inclusive of participants and the court team--and in the concept of the solution that is being sought--addressing underlying issues and promoting an ability to lead a constructive, happy and law-abiding life in the community.

Michael King,“Solution-Focused Judging Benchbook,” Monash U. ,Melbourne AU (2009)

Shared Principles of Collaborative Courts (CA)

Problem-solving focus Proactive judicial role Less adversarial, team approach Integration of tx and social services Enhanced access to information

Ongoing judicial supervision Use of sanctions and incentives Direct interaction between litigants

and judgeCommunity outreach

Adapted from “Components of Collaborative Justice Courts,” Judicial Council of California, Administrative Office of the Courts, http://www.courtinfo.ca.gov/programs/collab/background.htm

“Tough on Crime”

State prison population up 700% over 1970-2010

Three Strikes in California

Violent felony “Serious” felony Third strike = any felony including

“wobblers”

25 years to life

Modified last year. Change supported by prison guards’ union

When jail is the only answer:

U.S. jail and prison population is 2.3 million as of 2008

Four times population of Tasmania

5% of the world’s population; 25-50% prisoners

“Life After Prison Can Be Deadly, a Study Finds,” The New York Times, Jan. 11, 2007 p. A23

“Inmate Count in U.S. Dwarfs Other Nations’,” The New York Times, April 23, 2008 p. 1

“U.S. Prison Population Rises Despite a Drop in 20 States,” NYTimes Dec. 9, 2009 p. A22

1:133 Americans incarcerated

In 2009, 5.1 million

(1: 45) adults in the United States—was under some form of criminal justice supervision in the community

Disparate Impact

1:4 young, African American men incarcerated, on parole or probation

91% of Louisiana prisoners serving LWOP for non-violent crimes are African American

Largest mental hospital in U.S.?

Los Angeles County Jail with 3,000 MI inmates every day

Earley, Pete, Crazy: A Father's Search Through America's Mental Health Madness (Putnam, 2006)

Inmates with mental illness

30% of California’s prison population has a mental illness

About the population of Darwin Prison costs in California U.S.$8.6

billion annually

Tasmanian prisoners? They are

overwhelmingly young, male, poorly educated, unemployed and have high rates of mental illness, substance abuse, disability and chronic disease.

About 1,700 people per year

Australian Institute of Criminology Drug Use Monitoring in Australia

Arrestees with “heavy alcohol” abuse (>5 drinks/day) ¾ men and 2/3 women

Alcohol abusers also tested positive for other drugs (65%) and about ¼ (23%) tested positive for two or more drugs

At time of arrest 48% of offenders were positive for drugs and 15% were looking for drugs

Tasmanian prisoner profile >60% of those entering prison identify

alcohol and other drugs as a significant contributor to their offending

~75% of prisoners have a substance abuse and co-occurring mental health disorder

Ten separate prison admissions is not uncommon

Dr. Frances Donaldson, Risdon Prison Clinic

ATOD use + MH problems =

98.5%of Tasmanian prisoners

Correctional Primary Health Services

Cost of prison in Tasmania

$307 per day $112,000 per year per

prisoner

Daily costs

RISDON PRISON $307/DAY

HOTEL GRAND CHANCELLOR $250/DAY

Risdon Prison $307/day Henry Jones Art Hotel $289/day

Disproportionate impact

Indigenous population 13-15% in prison

General population 3.5%

U.S. drug courts credited with reducing the imbalance of African Americans in the prison population

What’s the Answer?

“We need to incarcerate the offenders we are afraid of and treat the ones we are just mad at.”

Recidivism and drugs

“…[E]xpectation of post-release drug use was a significant predictor of re-incarceration”

Payne, Jason, Macgregor, Sarah, McDonald, Haley, “Prevalence and Issues Relating to Cannabis Use among Prison Inmates: Key Findings from Australian Research Since 2001 ,National Cannabis Prevention and Information Centre (NCPIC), 2013.

Outcomes of incarceration Expensive Ineffective Not a general

deterrent More than 1/3

(39%) of Australian prisoners re-arrested and re-incarcerated 2 years after release

Conversation is changing The proportion of Australians who agree that

“stiffer sentences are needed” has declined

Little or no confidence in the prison system’s ability to:

a) Rehabilitate prisoners (88%)b) Punish (59%)c) Teach prisoners skills (64%)

L.Roberts, D Indermaur, What Australians think about crime and justice results from the 2007 Survey of Social Attitudes, Australian Institute of Criminology (AIC) 2007

Costs of misuse

Tangible costs of alcohol and illicit drugs in AU =

AU$19 Billion

DJ Collins, HM Lapsley, The costs of tobacco, alcohol and illicit drug abuse to Australia society in 2004-05, Commonwealth of Australia, 2006

Little change in prison

EXCEPT: Compulsory Drug Treatment

Correctional Centre Focuses on treatment and recovery 2006 NSW Drug Court, Justice Health

Services and Dept. of Corrective Services

Reintegration planning

Supportive environment Clean and sober housing Outpatient chemical dependence

treatment Ancillary services

Addiction

“When you can quit, you don’t want to and when you want to, you can’t”

Casper (Geoffrey Rush)in “Candy” (2006)

Solution-Focused Courts AU

International Perspective on Drug Courts

Australia England Panama Canada El Salvador Scotland Ecuador Ireland Mariturius New Zealand Netherlands Costa Rica Chile Israel Argentina Italy Trinidad and Tobago Caribbean Dominican

Republic Belgium Bahamas Macedonia Japan Brazil Vietnam Norway Wales Mexico

Planned

UN Office of Drug Control

13 Key Principles for Court-directed

Treatment and Rehabilitation Programmes

Drug Treatment Courts AU

First in 1999 Parramatta NSW 2 more in NSW 4th in planning stage in Wollongong

In all states or territories except QLD

2007 Tasmania – Court Mandated Drug Diversion Program

Other solution-focused courts Mental health list/courta) First 2000 Adelaideb) Tasmania - Hobart, Launceston,

Burnie and Devonport Aboriginal sentencing a) Nunga Court in Adelaideb) Koori Court in Melbourne Youth treatment court ACT Neighbourhood Justice Centre,

Victoria

Family Drug Treatment Court VICJanuary 2014

Specialised Youth Justice Court PilotHobart

Improved timeliness to finalisation of youth justice matters

Encouragement of more consistency in the court’s decisions

Greater development and application of expertise in youth justice matters

Better coordination of youth justice support services to the court

Increased collaborative approaches between the agencies involved in youth justice.

Achieved all but first goal Will expand to Launceston in 2014 No Family Treatment Court in Tasmania

Two steps forward, …

NSW closed Youth Drug and Alcohol Court (July 2012)

Queensland closed Murri Court, Special Circumstances and Drug Treatment Courts

(But allowed “Indigenous Sentencing List “)

Claimed fiscal concerns Drug Court in QLD saved

AU$6 million year

“Mr Cranny said the court was attempting to fill the gap of the drug and specialised courts, which had been scrapped by the Newman Government.”

Attorney-General Jarrod Bleijie said the program was not offered to serious offenders.

"We are an unashamedly tough Government, but we also support our most vulnerable,'' Mr Bleijie told The Courier-Mail.

Support from the right

“Conservatives favor voluntary drug courts because they provide options for those people who are sincerely committed to taking responsibility to reform their lives.”

“The reduced recidivism rates that result from the use of drug courts benefit public safety, but drug courts can also reduce the burden of incarceration on state budgets because they cost less—between $2,500 and $4,000 annually per offender.”

Drug Treatment Courts in the U.S.

2,833 Drug Courts in U.S. (1-10-13)

321Fami

ly

127 Tribal

129Stat

eVets

221DWI600+ hybri

d

5Feder

alVets

459Juveni

le

1,474Adult

39 Co-

Occurring

30 Re-

Entry

5Campu

s

25 FederalDistrictCourts

P-SCourts

Re-entry

Gun

Community

MentalHealth

DV

Prosti-tutionParole

Violation

Homeless

Veteran

IntegratedTx

Truancy

ChildSupp

Gambling

~1,300 Other P-S Courts

Characteristics

82% criminal courts are post-plea

140,000 participants nationwide

1.2 million eligible but not served

Efficacy – Adult Drug Court

Reduce substance use by >35%

Reduce crime by 50%Reduce recidivism -- 75% graduates are arrest free; crime reduction remains >14 years

Cost Savings

11 meta analyses show:$1 = $2.21 - $3.36 savingsUp to $27 per dollar invested if all costs are counted

Family Drug Court saves $10-15,000 per child

What can you do?

1. Develop partnerships with the drug diversion court and mental health list

2. Support and promote their work3. Encourage the development of other

solution-focused courts:a) Supreme court, post conviction, more

serious crimesb) Community supervisionc) Drink/drug driving courtd) Family treatment courte) Integrated youth court

Comments? Questions?