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Free Ammo Page > Therapeutic
Jurisprudence: Embracing a Tainted Ideal
UT Gun Rights note: The article below
was originally published by the Sutherland Institute in
January 2002. It is no longer available on their
website.
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 theirstatutory 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 processfor 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 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.
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