In recent years, the judicial community has been buzzing about a concept called "therapeutic jurisprudence," and most of the talk has been positive. The community at large likely knows little about this concept except for it's most popular and most talked about manifestation: drug courts. Public opinion toward drug courts and their purported benefits has been very positive, but there's a lot more to therapeutic jurisprudence than meets the initial glance.

To begin with, "drug courts" aren't really courts—they're administratively created sentencing procedures, not legislatively authorized courts of law. The legislature has created therapeutic courts in the juvenile court system, but the confusion surrounding "drug courts," "mental health courts," and other therapeutic court proposals is symptomatic of major problems in this therapeutic model.

Therapeutic jurisprudence has been trumpeted as a solution to social problems because its approaches are successful in their goals, they encourage collaboration between the judge and the therapeutic team, and they increase patient accountability, not to mention that drug courts, for one, have been a tremendous public relations success. Yet this examination ignores the significant costs of the therapeutic justice model to our American judicial traditions. Having judges collaborate with the representatives of the state, for example, undermines judicial impartiality, due process, and the balance of powers between branches of government.

In fact, upon examination therapeutic jurisprudence has more in common with the model of law practiced in the communist Soviet Union than with traditional American legal practices. The Soviet system lacked a separation of powers and a system of checks and balances, it completely undermined judicial impartiality, it packed its legal code with policy pronouncements, and it was more concerned with producing a particular outcome than ensuring an impartial process. While therapeutic jurisprudence advocates are certainly not communists, it is worth noting that embracing their model could easily lead the American justice system down the former Soviet Union's self-destructive path.

Is there a place, then, for therapeutic courts? The juvenile court system has functioned for decades under this model with some arguable success, but they have learned through many hard lessons and several landmark cases that the model must be employed in deference to due process, the separation of powers, and judicial impartiality. At the very least, if our courts are going to adopt this model, they must do so only with the consent of the people acting through their elected representatives.