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

Hon. Peggy Fulton Hora Judge of the Superior Court of California (Ret.) Community Legal Centres Tasmania 14-15 November 2013. Black, White or Grey: Therapeutic Jurisprudence and Solution-Focused Courts. Judge Sonia Sotomayor, a judge with “empathy” and “heart.”.

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

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  1. Hon. Peggy Fulton Hora Judge of the Superior Court of California (Ret.) Community Legal Centres Tasmania 14-15 November 2013 Black, White or Grey:Therapeutic Jurisprudence and Solution-Focused Courts

  2. 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

  3. 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)

  4. 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

  5. Comprehensive Law Movement • Seeks to maximize emotional, psychological and relational wellbeing of those involved with legal matters • Focuses beyond strict legal rights, responsibilities, duties, obligations and entitlements Daicoff, Susan, “Law as a Healing Profession: The ‘Comprehensive Law Movement’,” 6 Pepperdine Dispute Resolution Law Journal 1 (2006)

  6. Collaborative Judges • Judges believe they can and should play a role in the problem-solving process • Outcomes matter--court is not just based on a process and precedent Adapted from Judge Judith S. Kaye, Former Chief Judge, New York Adelaide Thinker in Residence

  7. Collaborative Courts • Recognize the therapeutic potential of the court’s coercive powers • Finds “Judicial Leverage” is an appropriate tool Adelaide Thinker in Residence

  8. Collaborative Change

  9. P-S Principles and Methods • Reduce recidivism in criminal cases • Save incarceration and other costs of social services, e.g., foster care • Have great public support • High participant satisfaction (procedural justice) • High judicial satisfaction

  10. 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)

  11. 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)

  12. 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

  13. Ongoing judicial supervision • Use of sanctions and incentives • Direct interaction between litigants and judge • Community 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

  14. “Tough on Crime” State prison population up 700% over 1970-2010

  15. 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

  16. 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

  17. 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

  18. 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

  19. 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)

  20. 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

  21. 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

  22. 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

  23. 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

  24. ATOD use + MH problems = 98.5% of Tasmanian prisoners Correctional Primary Health Services

  25. Cost of prison in Tasmania • $307 per day • $112,000 per year per prisoner

  26. Daily costs Risdon Prison $307/day Hotel Grand Chancellor $250/day Risdon Prison $307/day Henry Jones Art Hotel $289/day

  27. 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

  28. What’s the Answer? “We need to incarcerate the offenders we are afraid of and treat the ones we are just mad at.”

  29. 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.

  30. 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

  31. 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: • Rehabilitate prisoners (88%) • Punish (59%) • 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

  32. 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

  33. 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

  34. Reintegration planning • Supportive environment • Clean and sober housing • Outpatient chemical dependence treatment • Ancillary services

  35. Addiction “When you can quit, you don’t want to and when you want to, you can’t” Casper (Geoffrey Rush) in “Candy” (2006)

  36. Solution-Focused Courts AU

  37. International Perspective on Drug Courts Planned • 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

  38. UN Office of Drug Control 13 Key Principles for Court-directed Treatment and Rehabilitation Programmes

  39. 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

  40. Other solution-focused courts • Mental health list/court • First 2000 Adelaide • Tasmania - Hobart, Launceston, Burnie and Devonport • Aboriginal sentencing • Nunga Court in Adelaide • Koori Court in Melbourne • Youth treatment court ACT • Neighbourhood Justice Centre, Victoria

  41. Family Drug Treatment Court VICJanuary 2014

  42. 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

  43. 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

  44. “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.

  45. 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.”

  46. Drug Treatment Courts in the U.S.

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