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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 work— individuals 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
will —the
"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 problem —and one which is often
overlooked—is 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.
Footnotes
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?
The Sutherland Institute is an
independent, non-profit, nonpartisan research and educational
organization devoted to analyzing Utah public issues and
recommending policies that support private
initiative.
Nothing written here is to be construed as
necessarily reflecting the views of the Sutherland Institute,
as an attempt to aid or hinder the passage of any legislation,
or as an endorsement of any candidate or initiative. This
article is available electronically at
www.sutherlandinstitute.org. Permission to reprint this
article in whole or in part may be obtained by contacting the
Sutherland Institute. Phone: (801) 281-208; e-mail
si@sutherlandinstitute.org; address: 111 E. 5600 South, Suite
202, Salt Lake City, UT 84107; fax: (801) 281-2414.
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