New Directions in the Courts' Response to Drug and Alcohol Related Legal Problems: Interdisciplinary Collaboration
Collaboration in addressing offending-related substance use problems can be considered, amongst other things, in the sense of collaboration between professionals from multiple disciplines and as collaboration with offenders with substance use problems to address their problems. Collaboration between professionals recognizes that such offenders commonly have interrelated problems in areas such as health, housing, relationships and employment and that they need to be addressed to promote rehabilitation. Collaboration with offenders recognizes the importance of autonomy and that positive behavioral change requires offenders to undergo internal as well as external change processes. Where possible, courts and rehabilitation professionals should support these processes. Hitherto collaboration has been largely foreign to court processes. However, consistent with the judicial function, judges and magistrates can play an important role by using these forms of collaboration in appropriate cases to promote the rehabilitation of offenders with substance use problems.
Therapeutic Jurisprudence’s Challenge to the Judiciary
Therapeutic jurisprudence offers judges techniques and principles that promote the attainment of therapeutic outcomes such as the resolution of underlying issues associated with legal problems. These techniques and principles also equip judges to perform their daily technical functions concerning the conduct of the court and the gathering and interpretation of evidence and delivery of judgment more effectively. Misconceptions concerning the nature and application of therapeutic jurisprudence have hindered the wider adoption of therapeutic jurisprudence by the judiciary. Through the exploration of therapeutic jurisprudence and the sharing of the experience of using therapeutic jurisprudence techniques, judges have the ability to contribute to the development of therapeutic jurisprudence and to best practice in judging.
The Therapeutic Dimension of Judging: The Example of Sentencing
In deciding the facts of a case, determining the law and applying the law to the facts to reach a judgment, judicial officers exercise primarily analytical skills. However other aspects of the judicial role - such as promoting respect for the legal system and compliance with the law - also call for the exercise of interpersonal skills including the ability to listen and communicate effectively with an ethic of care and the ability to motivate others to consider positive change. Such skills are particularly called upon in problem-solving courts such as drug courts and family violence courts. But they should be skills exercised by every judicial officer. Drawing on the principles of therapeutic jurisprudence, this article illustrates how a judicial officer's attention to process and the proper exercise of interpersonal skills in sentencing can promote justice system goals. Interpersonal skills and therapeutic court processes should be subjects included in judicial training. Therapeutic jurisprudence says that the operation of the law and its institutions impacts upon the wellbeing of all those affected by them. It recognises that the law's operation is intimately concerned with human communication and behaviour and that the behavioural sciences share this interest. Therapeutic jurisprudence involves studying findings from the behavioural sciences as to what works in communication and behavioural change and adapting these findings for use in legal processes, including court processes. In taking a therapeutic approach, the law acknowledges that courts should not be like factory assembly lines relentlessly processing their human subjects at a rapid pace and that they can play an active role in promoting a comprehensive resolution to the legal problem. In adapting these findings, judicial officers, lawyers and other legal system professionals need to be mindful that there are other values the legal system upholds in its processes and that the impact of such processes on participant wellbeing may in some situations need to be subordinated to other concerns. Courts in Australia and overseas have been sensitive to the negative effect that improperly conducted court or other legal proceedings can have on an individual's psychology. For example, the Supreme Court of the United States emphasised the need for fair procedures in relation to revocation of parole and the possible negative psychological effects on a parolee denied such process. 1 The Supreme Court of Western Australia warned of the possible aggravation of a domestic violence problem in relation to a respondent to a restraining order who was denied a fair hearing. 2 Appeal courts have also commented on the negative effect on a defendant's wellbeing of derogatory comments made by a magistrate to a defendant. 3 The courts' experience of the effect of the actions of courts on individuals has its parallel in the experience in counselling that the likelihood of behavioural change is influenced by the nature of interpersonal interaction. 4