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Focus On Utah

January 2002, FOU 02-01


Therapeutic Jurisprudence: Embracing a Tainted Ideal

By Arthur G. Christean

Read the executive summary

Therapeutic jurisprudence was a major theme at the September 2001 Utah Annual Judicial Conference. Several presentations and awards were given on this topic, including an award by the National Conference of State Court Administrators to Utah's top court administrator partly in recognition of his support and advocacy of this concept. But what is "therapeutic jurisprudence"?

Though few Utah citizens could define therapeutic jurisprudence, many may have heard favorable media reports about its most popular aspect: "drug courts," and their stated goal of dramatically reducing the high recidivism rate of drug offenders. During the past decade this new use of courts has gained popularity in many states, including Utah, fueled by the increased availability of federal grants. Therapeutic jurisprudence advocates now hope to expand this model to include such entities as "mental health courts." According to one author drug courts are the "cutting edge of therapeutic jurisprudence" and that the vision of "a courtroom unencumbered by traditional rules, a criminal justice system that focuses on the 'individual needs of the client' rather than equal justice for all, cooperative therapy rather than adversarial trials—has taken the nation by storm."1 Yet concerns about this "revolution in justice," as its advocates refer to it, have not received much attention because it has been largely perceived as benign and beneficial.

What Therapeutic Jurisprudence Is, and What it Is Not

Interesting as these legal approaches may be, it is misleading to style such efforts as courts. They do not represent the creation of new judicial entities at all. Utah's basic judiciary structure is established under Article VIII of its constitution where specific courts are named and established. As expressly provided by this article, new courts can only be created by the legislature. There is no mention of "drug courts" as such in either the Utah judicial code or code of criminal procedure.2 In fact, "drug court" is simply the term given to administratively created social service programs in which individual judges may choose to participate and use their statutory sentencing authority to carry out program objectives. These objectives center on the delivery of counseling and treatment services in lieu of punishment to a select group of offenders who meet certain eligibility guidelines, mostly first- or second-time offenders. Defendants who successfully complete court-ordered treatment may avoid the jail or fines they would otherwise suffer, and may even earn complete dismissal of the charges. Failure to complete prescribed treatment, or to adequately cooperate with therapists, can mean swift imposition of jail, fines, or both.

Although therapeutic jurisprudence does not represent the creation of a new court system, its mission is very different from the traditional mission of American courts. Promoters of therapeutic jurisprudence refer to it as a form of "court intervention" that focuses on the "chronic behavior of criminal defendants" in connection with the imposition of some form of treatment. While the "traditional role of courts and judges [is] to provide a fair process for those with a dispute or criminal charge," under a therapeutic justice model "the process and the rules may be regarded as secondary, and what is preeminent is the whole defendant, provision of some form of treatment, and the outcome of that treatment"3 (emphasis added). This perspective considers success in terms of how well a defendant has altered his thoughts and behaviors, not whether he had a fair hearing and an impartial judge, or was sentenced in harmony with uniform sentencing guidelines.

The idea of therapeutic courts is not exactly new. It originated with the advent of juvenile courts in Chicago in 1899 and has been a part of most American juvenile courts ever since. It took over a half century for a juvenile court case to reach the U.S. Supreme Court in which the model of therapeutic jurisprudence was carefully examined. The Court was highly critical of it in this case holding that "good intentions were no substitute for due process."4 However, juvenile courts were, and always have been, legislatively created courts of limited jurisdiction, not social service programs in which judges can opt in or opt out. Indeed, Utah has had considerable experience with this model of jurisprudence with the way in which the juvenile court operated in Utah during a good part of its history, and especially during the 1941 to 1965 period. During these years the Utah juvenile court operated as a part of the executive branch of government within the state welfare department in flagrant contravention of Article V of the state constitution. It did so in complete harmony with the concepts of therapeutic jurisprudence now being advocated and possessed all the features associated with it.

Much of the impetus for therapeutic jurisprudence originated during the period of the "Great Society" of the 1960s and 1970s with its emphasis on the need to reshape American social institutions. However, it never reached the stage of maturity it has achieved during the last few years with the advent of drug courts and similar ventures. As the promoters of therapeutic jurisprudence readily acknowledge, under their model judicial collaboration is regarded as more important than judicial independence; and achieving desired outcomes more important than a fair process free of undue influence on the judge.5 They urge judges to be assertive in leading these initiatives and to "drive the train rather than just ride along." Unfortunately, they also chastise reluctant judges to be "part of the solution when a solution is presented" and that they can "either dogmatically continue to declare their traditional role, or they can change their objectives to conform to those of society, and then market the change."6

Benefits and Costs of Therapeutic Jurisprudence

This new form of jurisprudence, which offers so many promising benefits to the people of Utah, should give us pause. It poses serious threats to the judicial process because this court "intervention" distorts the judicial process and the role of judges in it. Therapeutic jurisprudence marks a major and in many ways a truly radical shift in the historic function of courts of law and the basic purpose for which they have been established under our form of government. It also marks a fundamental shift in judges' loyalty away from principles of due process and toward particular social policies. These policies are less concerned with judicial impartiality and fair hearings and more concerned with achieving particular results. Even though its advocates recognize that problems do exist with this model, they do not regard them as particularly serious, merely "disadvantages" to be overcome.7 Yet the dangers inherent in this new form of justice are indeed of a serious and fundamental nature.

Therapeutic justice advocates have four main justifications for these programs:

  • They workindividuals successfully treated do not re-offend, or do so at a much lower rate, thus saving money and public resources;

  • They require and promote collaboration by courts and judges with other agencies and professionals;

  • They compel individuals to respect the system and participate in the treatment services offered or face swift consequences, which is regarded as a superior form of accountability to traditional sentences; and

  • Their claimed successes are enthusiastically trumpeted by the media, thereby improving the legal system's public image.

These advantages, however, have costs. Therapeutic jurisprudence puts a tremendous strain on resources and judicial collegiality because of the one-judge/one-court concept common to this approach. Supervision of the treatment process by judges takes a great deal of court time and imposes unequal burdens on judges of the same bench. It also works against the goal of unified courts in the direction of a proliferation of specialized courts that operate on the basis of a different judicial philosophy from those of other courts within the same district and state. More importantly, though, the advantages offered by therapeutic jurisprudence take their toll on time-honored principles of the American legal system.

One, they compromise the separation of powers. While these programs may "work," defining what works and what doesn't disregards or discounts the basic constitutional doctrine of separation of powers by asking the courts to fashion solutions to social problems rather than waiting for the people to do so through their elected representatives. The line between the branch which interprets the laws and the one which implements them becomes completely blurred when courts become service providers intent on achieving specific outcomes. The judge becomes part of a treatment team and assumes oversight responsibility for the programs the team sponsors, and cannot avoid exercising executive functions as well as judicial.

Two, they compromise the objectivity and impartiality of judges. The collaborative process that therapeutic jurisprudence advocates so admire means the judge must act as part of the therapeutic team. When acting as a member of a clinical team bent on achieving certain outcomes, judges cannot avoid unethical ex parte communications, that is, discussion of the case with one party outside the outside the presence of the other party. Ex parte communications are traditionally a serious ethical breach for judges, but such communications form a regular part of the therapeutic process. Further, when judges become the central focus of the entire effort as the enforcer of the treatment team's decisions, rather than an independent adjudicator of the facts and the law, the appearance of bias cannot be avoided. To the defendant, the judge becomes simply "one of them."

Three, these programs substitute the judge's subjective judgement for time-honored due process checks, thereby eliminating a vital check on the abuse of government power. Judges cannot effectively act as impartial and detached magistrates to hear and rule on the competing claims of adversaries when they also function as advocates and defenders of the programs and procedures under challenge. Whether they have the background or training for it or not, judges become, in practice, official endorsers of the effectiveness of the treatment regimens they impose, which will always be justified on the basis of their beneficial intent, not their legal soundness. Thus, defendants who question the particular bias or training of the therapists, the content of the treatment or its methods, have nowhere to turn for a hearing on such matters and have little recourse but to submit to the treatment or suffer the consequences.

Fourth, therapeutic jurisprudence abandons the goal of equal justice under law. Treatment programs may make appealing news stories, but the programs will only be able to serve a limited number of those who qualify, not all defendants who would like to participate. Some defendants will consequently be treated differently than others depending on whether they are deemed worthy candidates for available program openings. The publicly reported success of this approach to justice is usually controlled by those who design and administer its programs, using criteria they choose to employ, which provides considerable incentive to screen out difficult or resistant candidates. The sentencing ideal of like sentences for like offenses is displaced to generate favorable media attention.

The separation of powers, due process, judicial impartiality, and equal justice under the law are among the bedrock principles of American jurisprudence, yet the therapeutic jurisprudence model compromises them all. Compounding the foregoing problems is the temptation to politicize the judicial process. Free of the traditional restraints on the judiciary which have been built into our form of government, which some find very confining, this model has an almost irresistible appeal to those who understandably yearn to find solutions to people's needs and want to "get things done." Yet this use of the judicial power, however well-meaning it may be, is basically alien to American legal traditions. In fact, the therapeutic jurisprudence model shares many characteristics with a highly foreign legal system: the legal model of the former Soviet Union.

Embracing the Soviet Model

Therapeutic jurisprudence, and recent legislation influenced by it, appears to share some of the prominent characteristics of Soviet-style law. By making this comparison I do not suggest that those who support therapeutic jurisprudence do so out of a desire to see American courts embrace the methods or ideology of the former Soviet Union's legal system. Rather, I offer these parallels to call attention to the pitfalls and dangers associated with going down this path, of which the history of the Soviet Union bears vivid testimony. When viewed in the light of these parallels, therapeutic jurisprudence seems far less innocuous and its risks and costs are brought into sharper focus.

In the former Soviet Union, courts and judges were expected to implement state policies and demonstrate loyalty to the philosophical premises supporting them. Unlike the United States Constitution, the Constitution of the USSR established the law as an instrument of the state's willthe "people's will"not as a limitation upon the state. With such a view of the purpose of the law, it is not surprising that such a legal system would fundamentally differ from the American system.

The first major difference between Soviet and American legal systems, and the first major parallel between the Soviet system and therapeutic jurisprudence, is the separation of powers. As noted above, the therapeutic justice model undermines our traditional separation of powers. The creators of the Soviet legal system rejected the concept of separation of powers, and checks and balances between branches of government. Not even the highest appellate courts had power to declare a law unconstitutional, nor to limit the legislative or executive arms of government on the grounds that those branches had violated a fundamental law or legal principle. In addition, in practice the executive became a source of law equal if not greater than the legislative body, usurping its authority and constituting a powerful means of control through the party apparatus. The Soviet legal system employed a "civil law" system where judges applied the law in isolation from one another's decisions, whereas the United States uses the Anglo-American concept of "common law" which relies on judicial precedent. Soviet judges, who often had little legal expertise, were free to subjectively apply their own concepts of state policy to achieve an appropriate result in a given situation, but doing so created no rule of law for future cases. Basic civil rights were protected by law "except when they were exercised contrary to their social and economic purpose."8

And there were many exceptions. Soviet legal codes tended to include a great deal of policy pronouncements and statements of political and social theory, another area where this model resembles the therapeutic jurisprudence model but differs from the American model. Soviet courts were expected to act in harmony with policy pronouncements and to enunciate rules of public order promoting the collective welfare of the state. The state's pervasive presence in Soviet society, its complete secularization of family life, and its hostility towards religion as an "intolerable superstition" created a need to condition people to accept state intervention in all social relationships. In contrast, aside from the occasional inclusion of expressions of "legislative intent," American legal codes have customarily eschewed extended statements of social and political theory. Instead, they traditionally focus on the rights and duties of citizens within a framework of freedom, and the penalties and remedies attached to their violation, both between individuals, and between individuals and the state. Nevertheless, notable exceptions are appearing in increasing numbers in our legal codes. The Utah Child Welfare Reform Act of 1994 contains several such sections, for example this language from the child and family services part of the Human Services Code:

... as a counterweight to parental rights, the state, as parens patriae, has an interest in and responsibility to protect children whose parents abuse them or do not adequately provide for their welfare. There are circumstances where a parent's conduct or condition is a substantial departure from the norm and the parent is unable or unwilling to render safe and proper parental care and protection. Under those circumstances, the welfare and protection of children is the consideration of paramount importance.9

The Utah Child Welfare Reform Act embodies key therapeutic jurisprudence principles such as emphasizing outcomes over processes and engaging judges as members of a therapeutic team rather than an independent arbiter. The act applies in the juvenile court system, which by law employs the therapeutic jurisprudence model, unlike "drug courts," which use that model without statutory authorization.

The Soviet legal system differed from the American legal system in several other vital ways. Soviet judges did not function under the traditional ethical standards that restrain American judges and acted with little concern for judicial impartiality and procedures that American courts refer to as "due process." Soviet judges were free to engage in ex parte communications, conduct their own interrogations and engage in prosecutorial activity. The courts had a two-stage system that began with a secret pre-trial investigation by the prosecutor followed by a public trial to verify and ratify the prosecutor's work, not to hear the defendant's case for the first time. They were not bound by traditional American rules of evidence; judges could admit hearsay evidence for a number of reasons. Soviet judges were encouraged to exercise their discretion to withhold conviction and punishment where a crime had clearly been committed, or to impose punishment even for conduct not clearly defined as criminal by the code.

In contrast, the procedural requirements in American legal codes have focused not on the need for predictable outcomes, but on trying to guarantee as far as possible an impartial tribunal, reliable evidence, and a fair process. Thankfully, even in the therapeutic jurisprudence model our American approach has not been as compromised as the Soviet system. There are, however, several disturbing parallels to this Soviet pattern in Utah's child welfare laws. State workers may enter homes without warrants, require children to be interviewed without parental consent, conduct investigations, and hold confidential hearings to "substantiate referrals," all before presenting the matter to the court. Following the initiation of court proceedings, several provisions attempt to structure and control the outcome of the judicial process, such as mandatory timetables, directives as to what evidence the court must consider and presumptions created, and review hearings requiring the court to approve treatment plans and to fix "permanency" goals.

Lastly, the Soviet system notoriously undermined judicial independence. Until after World War II the legislature both appointed and recalled judges, and even when the public did elect judges they used one-candidate ballots on which voters could vote for or against the judicial candidate. Local professional commissions, with the guidance of party members within these nominating groups, selected all judicial candidates. Despite the USSR's constitutional provision that "judges are independent and subject only to the law," and even though local officials could not intervene in the formation of an individual decision on personal grounds, this provision did not restrain intervention against a judge when a line of decisions were out of keeping with party wishes. Indeed, judges had to make decisions in accord with party policy or risk recall.10 In the United States judicial independence has been traditionally understood quite differently. While federal judges in America have life tenure and need not fear removal except by impeachment, many state trial judges may be removed or disciplined for unpopular decisions in a manner very similar to the Soviet system. In Utah, for example, before the judicial selection process was permanently changed by the adoption of a new judicial article in 1985, juvenile court judges were appointed and removed by the governor (he had to re-appoint or decline to do so at the end of their terms) and several judges lost their positions in that manner.

The Proper Role of Therapeutic Courts

No one seriously disputes the worthiness of the goal to restore people to mental health by correcting the way they think and behave, or help them overcome destructive addictions and bad habits by teaching them how to lead more productive lives. Various social service programs, both secular and faith-based, have emerged over the past generation to meet these needs. The big problemand one which is often overlookedis that such a broad mission of social and spiritual redemption has not been assigned to courts and judges within our constitutional scheme of government. If our courts of law are to be refashioned to function as major social service delivery systems, with the expansive and unchecked power this represents, as well as the basic compromises with due process and judicial impartiality which go with it, this should not be done without the full knowledge and consent of the people of the state of Utah, who are after all the ultimate sovereign. At a minimum, there ought to be clear authorization by the representatives of the people in the form of legislative establishment of such "problem-solving courts"11 with defined powers and limitations on the kinds of cases they can handle. Such a profound change in the way in which courts operate and judges use their powers should not be brought about by the action of administrative bodies creating new courts, whether as "pilot programs" or otherwise, and however well-motivated and public-spirited the promoters of such programs may be.

Three appellate court cases from 1963 to 1982 bear on these issues. Two were decisions of the Utah Supreme Court and the third a decision of the U.S. Supreme Court. They all have one thing in common: a rejection of one or more of the basic ideas of therapeutic jurisprudence. All arose from juvenile court proceedings. That is understandable when considered in light of the fact that the juvenile court was the prototype for therapeutic jurisprudence and this concept was basically alien to other courts until the 1990's. The 1963 case rejected the claim that separation of powers was not important because the Utah juvenile court structure at that time was well designed to meet the needs of a particular class of persons (juveniles and children) and that it had achieved good results.12 The 1967 case rejected the claim that good intentions and the benefits of social services and rehabilitative therapy justified the disregard of basic rights and due process protections, as well as traditional standards of judicial ethics, for those accused of crime who just happened to be under 18 years of age.13 The 1982 case rejected the disregard of fundamental constitutional rights of parents on the basis of the popularity of the policy being advanced (best interest of the child) and its promotion of inter-disciplinary collaboration.14

The rise and popularity of therapeutic jurisprudence "... raises sobering questions about the future of American criminal justice: Is the purpose of courts to 'meet the individual needs' of defendants? Are justice and therapy one and the same thing?"15 This recent renewal of a push for 1960s-style judicial activism should concern all Utah citizens. There is great danger to our freedoms and way of life when courts of law abandon justice and the rule of law in favor of doing things to people for their own good and because it is deemed to be in their best interest or the best interest of the state. Solutions to social problems employed by regimes without the traditions of freedom we have in this country can certainly be said to work, but that is not a good enough reason for American courts to adopt them.

There may be reason for cautious optimism. In a time of continuous prosperity and peace, and plentiful tax revenues, there is little incentive for people to get very concerned about whether some new chore assigned to a particular branch of government is suitable or not. Many citizens, if not most, are just too preoccupied with their personal lives to pay attention and too nice to say no to new social programs which will help maintain social stability and demonstrate collective compassion for the less fortunate. After all, with such a resilient economy, we can surely afford to experiment with new ways to meet unmet social needs, so the argument goes. September 11 changed all that. Priorities will now have to be carefully reexamined in the light of new realities and a declining economy. The principal threat to limited government, and the constitutional rights it seeks to protect, does not arise from a government which pursues the interests of its citizens with energy and resolve. It arises from a government which cannot tell the difference between a genuine crisis and a constituency demand, between solutions to the problems or needs of a special interest group and the core functions of government to protect life, liberty, and property. In the wake of September 11, perhaps these distinctions will become more important and there will be fewer distractions from the essential work governments must do and do well, especially courts of law.


1. Eric Cohen, "The Drug Court Revolution: Do we want theory rather than justice to become the basis of our legal system?" The Weekly Standard (December 27, 1999) 20.

2. Courts of justice are enumerated in Utah Code Section 78-1-1. There is no mention of "drug courts."

3. Conference of State Court Administrators, "Position Paper on Therapeutic Jurisprudence." Paper presented at the business meetining of the Conference of State Court Administrators, Williamsburg, Viriginia, August 5, 1999, p. 1.

4. In re Gault, 387 U.S. 1, 87 S. Ct. 1428 (1967).

5. Conference of State Court Administrators, "Position Paper on Therapeutic Jurisprudence," 2, 4.

6. Ibid, 3.

7. Conference of State Court Administrators, "Position Paper on Therapeutic Jurisprudence," 3.

8. "Soviet and Socialist Legal Systems," The New Encyclopedia Britannica (1975, V. 17) 316-17. For further reading on the Soviet legal system, see E.L. Johnson, An Introduction to the Soviet Legal System (London: Methuen & Co., 1969) and John N. Hazard, William E. Butler, and Peter B. Maggs, The Soviet Legal System (Dobbs Ferry, New York: Oceana, 1977).

9. Utah Code section 62A-4a-201. While this quote is a good example, this entire subsection is a statement of legal and social theory. Available online at http://www.le.state.ut.us/~code/TITLE62A/htm/62A04024.htm

10. "Soviet and Socialist Legal Systems," 316-17.

11. The Therapeutic Justice Task Force expressed their preference for this term, "problem-solving courts" at the Conference of Supreme Court Justices on August 3, 2000.

12. In re Woodward, 384 P.2nd 110, Utah 1963.

13. In re Gault.

14. In re J.P., 648 P.2nd 1364, Utah 1982.

15. Cohen, "The Drug Court Revolution," 23.

Arthur G. Christean, B.S., M.S.W., J.D., is a retired juvenile court judge currently serving as a active senior judge for both the juvenile court as well as the district court in Utah. He is the author of the manuscript The Child Welfare Reform Act of 1994: Is the Cure Worse than the Problem?

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