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Therapeutic Jurisprudence

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Therapeutic Jurisprudence by Acting Justice Lorraine Walker

Section 12A of the Crimes (Sentencing) Act 2005 introduced the option of a drug and alcohol sentencing order to the Australian Capital Territory. The explanatory memorandum considered the role of drug and alcohol courts: “They provide a unique response to a group of high risk and high need offenders who have serious issues with drug and/or alcohol use. They aim to achieve long-term behavioural change by taking a problem-solving approach to dealing with an offender’s behaviour, and support the development of a pro social lifestyle. DACS provide targeted and structured health and justice interventions while holding the person accountable for their offences”.

The ACT is the last jurisdiction in Australia to introduce a court process in which the primary focus is offender rehabilitation using a multi-disciplinary approach to destructive drug and alcohol use. The legislature, at the urging of the Chief Justice, has seen fit to place this work in the Supreme Court. This recognises that a therapeutic approach is front and centre of the Territory’s justice response.

This new sentencing list is radically different to traditional criminal sentencing. It is unlike any other sentence available in the Territory in that it is not only imposed by the judge but also administered by the judge after the sentence is imposed for periods of a year or even more.  The offender has to indicate that they wish to be assessed for the order. In doing so, they consent to an exchange of information between a range of players across health, corrections, prosecution, defence, police and the judge. This goes beyond the preparation of reports which may be tested in an adversarial sentencing process. It involves the creation of a team of professionals who each bring their knowledge of the person to the table for discussion with the judge about their suitability for the sentence, and, if found suitable, their progress on it. It allows, indeed requires, the judge to have a frank exchange with the offender in court about their progress, positive and negative. It recognises that there will be breaches, which must be addressed, but that improvement will rarely be linear. It allows an offender to be open about their drug use, providing immunity from prosecution based on such an admission, so that a health or other appropriate response may be applied. It also retains the court’s power to punish for breach in the event that the offender is unwilling or unable to respond to the support offered, maintaining the court’s ability to balance the offenders needs and the long term aim of improved community to any immediate community safety considerations.

This approach does not derogate from any existing sentencing principle. It sits well with the need for general and specific deterrence, punishment, denunciation, personal accountability, protection of the community and rehabilitation. But a therapeutic approach allows not only recognition of individual factors which have lead to criminal offending but also to how those factors can be addressed under the auspices of the court in order to better meet the sentencing objectives, in particular, the reduction or cessation of future offending. A successful outcome is one which sees an offender engaging with, not against, the process; and from which the offender is able to perceive the need for change and be supported to effect that change, or, at the very least, not be made a worse offender, a greater “problem”, as a result of their contact with the criminal justice system.

The introduction of this sentencing option in the ACT reflects an adaptation of a process which originated in the United States of America in the 1980s – “the drug court”.  At its genesis, the  approach was a response by proactive judicial officers to their frustration at the lack of benefit, indeed in many instances, significant harm, being done to offenders by the purely punitive response mandated by the law to what was essentially a health and social issue.  This innovative response was an early example of what is now known as therapeutic jurisprudence. Whilst the ACT has not established a separate court, unlike some jurisdictions, a dedicated sentencing list has been created allowing for consistency and the development of expertise.

Professor David Wexler coined the term “therapeutic jurisprudence” in 1987. He and Professor Bruce Winnick developed the concept, together studying and writing about the effect of the law, its processes and professional actors on those to whom the law was applied. They recognised that its application could be both therapeutic, improving the person’s situation, or anti-therapeutic, creating negative consequences. This perspective allows, indeed requires, a consideration of the broader impact on the person and the community both in the development and application of the law.

As applied in practice, a therapeutic approach gives legal players the freedom to step outside traditional boundaries in order to use legal power and process to identify antecedent causes of a participant’s conduct, marshalling support to address those issues with a view to resolving “the problem”. Thus, the term “problem-solving courts” emerged.

As the legislative approaches now existing in a number of Australian jurisdictions shows, this therapeutic perspective can also be applied to creation of the framework for application of the law. Thus Wexler’s vision that therapeutic jurisprudence could lead to a restructure of legal systems has crystallised.

I anticipate, as Wexler envisioned, that this approach may be applied holistically across a range of, perhaps all, legal jurisdictions, not only criminal, and to national and international legal processes. Already, a therapeutic approach has extended in many Australian and international jurisdictions to other “problems” – juvenile offending, homelessness and mental health. The principles underpin developments in the family courts in the United Kingdom and child protection courts in the USA, UK and Victoria. Serious consideration must be given to incorporating a genuinely therapeutic approach in any proposed overhaul of the Australian family law system and state based coronial systems.

There is some resistance to the expansion of a therapeutic approach even in the criminal law context. There is a strong vein of rejection of what is seen by many judicial officers as the “social work” approach, a concern that judges are not equipped for this work or that the approach undermines a proper application of legal principle. However, outcomes in the criminal context are positive. Statistics demonstrate that the traditional sentencing approach fails abysmally in achieving effective rehabilitation. The widely held perception that a person in prison is likely to return to prison is borne out by the statistics. Australia wide, roughly 46% of offenders sentenced to imprisonment will return within two years of their release according to the 2019 Report on Government Services. Conversely, numerous evidence based reviews of therapeutic courts have demonstrated reduced recidivism, a moderation in the type, extent or frequency of offending and other measurable improved life outcomes, such as skills and health.

Judges cannot afford to adopt a business as usual approach to the weaknesses of our justice system. It is incumbent on the judiciary to consider and trial different approaches and, where they lack the necessary skills or expertise, to engage with others who have them. That engagement cannot be achieved simply by taking evidence in an adversarial contest. It must be collaborative. Where legislative frameworks inhibit innovative approaches, the government should be made aware of those limitations and the consequences.

In the 1980’s, there was significant fear and distrust about the emergence of alternative dispute resolution as “privatised law” which had the potential to undermine the proper rule of law. Since that time it has become a necessary adjunct to adversarial determination of disputes. In an almost polar opposite to the therapeutic approach, ADR took hold in the commercial world and has slowly spread so that even the criminal law now holds a place for it. In the ACT, for example, criminal case conferencing applies ADR principles of compromise other than on a strictly evidential basis.  I venture to predict that the influence of therapeutic justice will become mainstream in criminal and family law within the next decade and that its influence will ultimately spread across all courts, whether judge lead or through legislation.

Article prepared by Acting Justice Lorraine Walker, Supreme Court of the ACT.

Note: The 2021 NJCA/ANU Joint Conference will have Therapeutic Jurisprudence as its theme