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International Journal of Law and Psychiatry 33 (2010) 417–427
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International Journal of Law and Psychiatry
A testable theory of problem solving courts: Avoiding past empirical and
legal failures
Richard L. Wiener a,⁎, Bruce J. Winick b, Leah Skovran Georges a, Anthony Castro c
a
b
c
University of Nebraska, Lincoln, United States
University of Miami School of Law, United Srtates
University of Miami Miller School of Medicine, United Srtates
a r t i c l e
i n f o
Keywords:
Social cognitive model
Emotion
Procedural justice
Predicting outcomes
a b s t r a c t
Recent years have seen a proliferation of problem solving courts designed to rehabilitate certain classes of
offenders and thereby resolve the underlying problems that led to their court involvement in the first place.
Some commentators have reacted positively to these courts, considering them an extension of the philosophy
and logic of Therapeutic Jurisprudence, but others show concern that the discourse surrounding these
specialty courts has not examined their process or outcomes critically enough. This paper examines that
criticism from historical and social scientific perspectives. The analysis culminates in a model that describes
how offenders are likely to respond to the process as they engage in problem solving court programs and the
ways in which those courts might impact subsequent offender conduct. This Therapeutic Jurisprudence model
of problem solving courts draws heavily on social cognitive psychology and more specifically on theories of
procedural justice, motivation, and anticipated emotion to offer an explanation of how offenders respond to
these programs. We offer this model as a lens through which social scientists can begin to address the concern
that there is not enough critical analysis of the process and outcome of these courts. Applying this model to
specialty courts constitutes an important step in critically examining the contribution of problem solving
courts.
© 2010 Elsevier Ltd. All rights reserved.
1. Introduction
Some commentators view the proliferation of problem solving
courts or specialty courts designed to rehabilitate certain classes of
offenders and thereby resolve the underlying problems (frequently
substance abuse, mental illness, and domestic violence) that led to their
court involvement as an application of Therapeutic Jurisprudence
(King, Freiberg, Batagol, & Hyams, 2009; Petrila, 2005; Redlich, Steadman, Monahan, Petrila, & Griffin, 2005; Winick, 2000, 2003; Winick &
Wexler, 2003). Therapeutic Jurisprudence (hereinafter “T.J.”) is an
interdisciplinary method of legal scholarship that aims to reform the law
in an effort to improve the psychological and emotional well being of
those affected by the legal process (Wexler & Winick, 1991, 1996;
Winick, 2000, 2005; Winick & Wexler, 2003). By using the tools of the
behavioral sciences, TJ assesses the therapeutic and counter-therapeutic
consequences of the law with the goal of increasing the former, and
decreasing the latter (Winick, 2000).
The legal and social science scholarship that developed around this
mental health approach to law provides a foundation for hundreds of
“problem solving” courts that have emerged in the United States.
⁎ Corresponding author.
E-mail address: [email protected] (R.L. Wiener).
0160-2527/$ – see front matter © 2010 Elsevier Ltd. All rights reserved.
doi:10.1016/j.ijlp.2010.09.012
Though varying in their specialization, each of these courts modifies the
traditional roles of lawyers and judges in the judicial process, and links
them with probation officers, social workers, and other justice system
partners to form a treatment team for each individual offender. These
teams combine the efforts of individual members to create a strategy
that attempts to internally motivate the offender and produce longlasting change (Winick, 2000). The hope is to eventually reduce the rate
of recidivism, and make the term “revolving door” obsolete. The
application of Therapeutic Jurisprudence to reoccurring problems of
repeated, criminal behavior is sometimes used to justify the involvement of judge led court teams as the chief underlying structure of
modern problem solving courts. However, this application of TJ was not
the first effort of the criminal justice system to solve unique individual
problems that make offenders vulnerable to the revolving door problem.
Indeed, the Juvenile Court, originated in Chicago in 1899, can be seen as
a precursor to the modern problem solving court (Winick, 2003).
2. The first problem solving court: Wayward Minor's Court for Girls
According to Quinn (2009), Judge Anna Moscowitz Kross, one of
New York State's first women judges devoted her career to advancing
the use of therapy courts in the 1930s in New York to treat the problems
of young “wayward” adolescent girls. In 1936, Judge Kross, a Magistrate
Judge in New York who heard misdemeanor cases frequently involving
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sexual nuisance crimes, started the Wayward Minor's Court for Girls
(WMCG) to deal with women between the ages of 16 and 21 charged
with sexual misconduct including but not limited to prostitution. The
federal Works Progress Administration (WPA) funded and offered
support for the experimental court (Quinn, 2009). In the 1930s, the
WMCG found jurisdiction under the Wayward Minors' Act to prosecute
young women charged with sexual misconduct and continued to act in
that capacity in one form or another until the mid 1960s (Quinn, 2009).
The parallels between today's problem solving courts and the
Wayward Minor's Court for Girls are striking. Because the WMCG
defendants were too old for family court, without the intervention of the
WMCG, they would have stood trial in the Adult Criminal Court for
Women (Quinn, 2009). Judge Kross launched her experiment as an
effort to treat offenders rather than to punish them for their nuisance
crimes. The WMCG diverted these cases from criminal court allowing
the defendants to represent themselves without counsel. Kross sought
to “– minimize the strictly legalistic character of the court as a tribunal,
while using – individualized and socialized techniques and procedures
to provide assistance to the wayward young women before it” (Quinn,
2009, p. 72).
Judge Kross believed that “adjustment” was preferable to “adjudication,” in part, because the stigma that emerged against defendants during
the trial process functioned as a barrier to rehabilitation for women who
got into trouble specifically for failing to follow the sexual mores of their
time. The formal process of adjudication and punishment could only
exacerbate the social stigma that already permeated their lives and which
made an already difficult rehabilitation process even harder (Kross, 1936).
The initial intakes at WMCG were similar to those that one can observe at
current day problem solving courts. Volunteers and professionals
presented to the judge (and therefore read to the defendant) a detailed
summary of all available information including not only the charges, but
also an analysis of the social and psychological issues that people of the
time believed to be root causes of the behavior that got the young woman
into trouble in the first place. At first, this was the only formal hearing at
the WMCG (Quinn, 2009). However, to address violations of due process
rights, the judges later started completing court forms verifying that a
defendant was arraigned, advised of her rights, and had consented to the
court's intervention with regard to a medical examination, shelter, and
other social services (Quinn, 2009).
Unlike today's problem solving courts, which are staffed with teams
of trained social workers and attorneys, the WMCG relied heavily on
volunteers to gather the detailed information about the defendants
before they appeared before the magistrate. The volunteers gathered, “a
full social history of the accused; and additional mental and physical
health data, including details about the woman's sexual history” (Quinn,
2009, p. 75). Short on funding, Judge Kross herself personally recruited
volunteers to process and assist the women defendants in her court.
Based upon this information the court developed individual treatment
plans separately for each woman and then proceeded with an even
more informal supervision process to check on each woman's trajectory
as she followed the treatment plan with the help of volunteers, medical
personal, and community service agencies.
As is the case in modern problem solving courts, the women
returned regularly to the WMCG allowing judge Kross to maintain a
personal connection with each defendant, monitoring the client's
progress toward her rehabilitation goals, and encouraging each to
engage actively in her own treatment. Prior to each conference, the
magistrate held a meeting with her staff and with outside community
agents who were responsible for assisting in the rehabilitation process. If
the defendant was not making adequate progress, the magistrate could
(and did) change the individualized treatment plan, perhaps placing the
defendant under the supervision of an inpatient or outpatient
community agency, which often came about as a sanction against
some prohibited behavior. The WMCG relied upon the women's initial
consent to participate in the court, to justify the heightened level of
monitoring and to justify the consequences that could result from not
following the treatment plan. It was not always clear that the court
obtained the consent in a formal way that protected the defendant's
legal rights. At times, it appears as if at least the initial consent was
implied rather than explicit.
Judge Kross, a strong advocate for the WMCG often engaged in media
campaigns to capture public support. Nonetheless, when the State of
New York reorganized its court system in the 1960s it relegated these
types of informal procedures to the family courts and removed them
from the criminal division entirely (Quinn, 2009). The demise of the
WMCG occurred during a time when the U.S. Supreme Court reinforced
the individual rights of defendants in criminal courts, which the
informal procedures of the WMCG threatened to erode. Among these
guarantees were the right to counsel for those who could not afford
attorneys (Gideon v. Wainwright, 1963), privacy rights, and the right to
remain silent (Mapp v. Ohio, 1961; Miranda v. Arizona, 1966). The
practices of Judge Kross's court could not guarantee that the defendants
in her court would enjoy these hard won reforms.
3. Criticisms of the WMCG and modern day problem solving courts
In her analysis of Judge Kross's movement and the Wayward
Minor's Court for Girls, Quinn (2009) identified a core of set of
problems that plagued this first effort at focusing on client problems
rather than on the charges that the prosecutors brought against them.
First and perhaps foremost, the WMCG did not pay enough attention
to the legal rights of the defendants or to the ethical issues that the
magistrates needed to negotiate as they planned and monitored
individualized treatment plans that they crafted for the women.
Inadequate attention to rigorous client legal representation and
obtaining informed consent before adjudication were areas in which
Judge Kross received a great deal of criticism. Although she ultimately
acted to remedy many of these concerns, some might conclude that
the judge acted with too little, too late.
Second, the movement evolved without any particular philosophic
underpinnings other than a kind of paternalism that targeted the
behavior of sexually permissive girls. Rather than offering a justification
for early court intervention, continued judicial oversight, and efforts to
modify the defendants' lifestyles, the movement grew out of the well
intentioned, but under justified inclinations of Kross to help the women
who she perceived to be victims of difficult social and economic
conditions. Furthermore, the fact that the WMCG targeted the behavior
of young women acting out sexually was too easily interpreted as an
effort to simply defend the sexual mores and prohibitions of the time;
perhaps, utilizing an overzealous reform movement that invoked the
power of the state to further the values of a specific segment of society.
Judge Kross would have benefited a great deal from the perspective of
Therapeutic Jurisprudence, which modern problem solving court judges
and scholars often rely upon as the foundation of their informal
methods.
Not only were there legal concerns that challenged the legitimacy of
the WMCG, the court of public opinion ultimately turned against the
movement. The innovation had no outcome data showing that is was
any more effective than more traditional (and less expensive)
interventions. While it is true that Judge Kross kept careful statistics
concerning the outcomes of individual cases, these data were not always
complimentary to the court's efforts. They did not indicate that the
outcomes were worse than the outcomes in Adult Women's court, but
neither did they document that the WMCG was a better solution to the
problems of young women who acted out sexually. For example, Quinn
(2009) referenced a report written by Clarke in 1952 in which he
tracked 264 cases that were arraigned in the WMCG to find that less
than half (123) had their cases dismissed at the end of the year.
Furthermore, in 1952, 357 girls, 57% of the total 624 girls seen in Girl's
Term Court (a modified version of the WMCG), were ultimately
convicted and many of them wound up in state reformatories (Quinn
citing Fisher, 1955). To survive in the court of public opinion, judges in
R.L. Wiener et al. / International Journal of Law and Psychiatry 33 (2010) 417–427
modern problem solving courts need to show that their courts are more
effective than the traditional forms of adjudication. While there are data
to support this claim, at least for drug courts, many professional
commentators including some social scientists claim that these data are
less than rigorous.
The messages of some of the professionals (social workers, attorneys,
and researchers) that administer and study modern day problem
solving courts are not always supportive of the movement's efforts
(See Nolan, 2001;2002;2003). However, one advantage that modern
day problem solving courts have over the WMCG is that trained
professionals administer and study these courts, while the staff and
administrators of the WMCG consisted largely of volunteers and
amateurs who, though well intentioned, often did not have enough
(or any) training in the fields of intervention or social sciences to
perform their tasks. The advantage of modern day problem solving
courts is that paid professional attorneys, social workers, treatment staff,
and social scientists administer them, and study them. An increasing
number of sociologists, political scientists, and psychologists carefully
track these processes and outcomes using the most rigorous methodology available for use in field settings. While the public's eye focused
only obtusely on the WMCG in the 1930s, today it relies on the tools of
the social sciences to monitor much more sharply the efforts of the
Department of Justice and similarly seated state institutions as they
apply somewhat similar court innovations 75 years later.
Although many of Professor Quinn's criticisms of modern day
problem solving courts look to the past rather than to the future, she is
not alone in her criticism of problem solving courts on either legal
grounds or empirical grounds. She makes the important and well-taken
point that there have not been enough efforts at critical evaluation of
these courts. She argues that the movements' celebrants often drown
out the voices of those who do critically address the efforts of this,
perhaps, not so new reform movement. Quinn (2009) points out that
many of the movements' supporters are convinced that this is the most
innovative effort at criminal justice reform in the history of the United
States and they speak with one loud voice, sometimes not leaving room
for a more systematic examination of the problem solving court in the
twenty-first century. Professor Quinn (2009) cites West Huddleston, the
Chief Executive Officer of the National Association of Drug Court
Professionals who stated at the group's 2009 meeting in Anaheim,
California, “After twenty years of research and results we can now say
that Drug Courts are the most successful justice intervention in our
nation's history.... They are a solution to the vicious cycle of drugs and
crime that has ensnared 1.2 million drug-addicted offenders in our
criminal justice system. We must put a Drug Court within reach of every
American in need” (p. 81). (To read additional commentary: http://www.
reuters.com/article/ pressRelease/idUS146385 + 11-Jun-2009 +
PRN20090611).
We argue that in order to avoid the fate of Judge Kross's Wayward
Minor's Court for Girls, modern day problem solving courts must
embrace a transparency that comes from critical analysis of its process
and procedures. This means that problem solving courts should adopt a
philosophic perspective that justifies its motives for change, adhere to
rigorous legal and ethical standards, employ trained professionals, and
invite social scientists from a variety of backgrounds to collect rigorous
process and outcome data that objectively examine, describe, and
evaluate this alternative form of judicial intervention. Below we offer
such an analysis of problem solving courts and a call for a different type
of research to focus a clear light on the processes and procedures that
drive them to accomplish, or fail to accomplish the goals of their
interventions for individual defendants. We take Professor Quinn's
comments seriously and suggest a plan to focus more light on problem
solving courts and to study them with a more objective eye. To do so, we
approach the problem from the perspective of Therapeutic Jurisprudence. First, we discuss the development of problem solving courts, and
the role of Therapeutic Jurisprudence in their evolution. Next, we offer a
model of the way judicial intervention influences defendants' behavior,
419
and finally we suggest a plan for testing the model and thereby focusing
some welcome attention on problem solving courts to explain when
they work and they might not work.
4. Theoretical analysis of problem solving courts
4.1. Overview
For many who suffer from mental illness or substance abuse, and
even for some who are perpetrators of family violence, the criminal
justice system has become a dumping ground. They enter as defendants,
leave after serving their punishments, and too frequently reenter as
repeat offenders (King et al., 2009). In cases in which the social welfare
system breaks down and fails in its mission to help and support those
with social and psychological dysfunctions, the courts intervene to
protect the public and administer justice against those who have broken
the criminal code because of their inability to function within the
constraints of the law. Because of psychological problems, many of these
offenders act out in disruptive ways that do not easily remit to the
punishment-orientated interventions of the criminal justice system,
which was designed to deter, incapacitate, and rehabilitate acts
prohibited by law (Winick & Stefan, 2005). As a result of their
dysfunction, these offenders' difficulties become justice problems that
traditional criminal courts try to resolve with techniques that are
ill-suited to address the personal and psychological failings of law
breakers (King et al., 2009). The primary tool used by judges in
traditional courts is to invoke sanctions against offenders. However, the
effective resolution of these problems would require the courts to
supervise treatments and provide support services to address the
tenacious psychological and social problems that caused offenders to
find themselves in trouble in the first place (Freiberg, 2000). As a result,
traditional courts have become revolving doors for people whose
criminal behavior arises from psychological and social impairments
(King et al., 2009).
Problem solving courts are one response to the revolving door
problem. Judges adjudicate the criminal charges in a way that puts in
place the services necessary to confront offenders' underlying psychological and social problems (Berman & Feinblatt, 2005; Winick &
Wexler, 2003). Judges in problem solving courts use their authority and
oversight to hold offenders accountable for their actions and make them
responsible for their own rehabilitation in a way that other community
agents lack the authority to do (Berman & Feinblatt, 2005; King et al.,
2009; Winick, 2003; Winick & Stefan, 2005; Winick & Wexler, 2003).
Judges act as team leaders and form partnerships with community
welfare agencies and service providers to address the wider issues that
offenders face and in the process combine the role of judicial officer and
case manger to motivate the participants to take advantage of the
services available for remediation. The process becomes collaborative
instead of adversarial so that attorneys, service providers and judges
work as an interdisciplinary team seeking a consensus to serve the best
interests of the participants and their families. The offenders themselves
often take on an active role in their own rehabilitation (Berman &
Feinblatt, 2005; King et al., 2009). While the philosophy of problem
solving courts is well-articulated, specific models of how the courts
influence offenders remain poorly specified. The current project
proposes a motivational model of participant rehabilitation, which
takes the perspective of the offender and follows the principles and
approaches of Therapeutic Jurisprudence (Winick & Wexler, 2003).
First, we discuss the traditional rational actor approach to adjudication
and then describe a model more consistent with Therapeutic
Jurisprudence.
4.2. Rational actor model
Some problem solving court judges borrow from more traditional
courts to rely heavily on specific and general deterrence. Adopting a
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deterrence based model, the judges function as compliance monitors
ordering the participants to participate in services and evaluating their
progress during review hearings in order to ensure public safety and
offender obedience. Judges acting in this capacity work in a familiar way
not very different from those who rule on the attorney motions during
hearings in criminal court. For example, Rempel, Labriola, and Davis
(2008) reported that in a Brooklyn Domestic Violence Court, magistrates' primary activities were to hold review hearings to determine
whether offenders were in compliance and therefore could continue to
the next hearing without a change in protocol or were not in compliance
and were in need of additional sanctions to deter their offending
conduct. In both traditional criminal courts and problem solving courts
in which judges act as compliance monitors, the law adopts a rational
actor model to explain the conduct of substance abusers, mentally ill
offenders, and domestic violence perpetrators.
According to this model (Korobkin & Ulen, 1998, 2000) judges can
use the law to encourage socially desirable conduct and discourage the
undesirable because problem solving court participants weigh the costs
and benefits of following the law against those of not following the law.
Participants base rational choices on the desire to increase or at least
maintain their material, social, and psychological assets at the time of
their choices (Hastie & Dawes, 2001). Because the consequences of
choices and outcomes are probabilistic and not certain, problem solving
court participants act like intuitive statisticians and estimate the
expected utility of their outcomes (i.e., the severity of the outcome
times the likelihood of the outcome) for each choice, in accordance with
the laws of probability theory. Under the rational choice model, the
driving force is adaptation so that the solution is to select behaviors with
the highest expected utility (Korobkin & Ulen, 2000), those that
maximize the likelihood of a positive change in one's life assets. As
Judge Posner stated, “man is a rational maximizer of his ends” (Posner,
1997, p. 24). We argue that the rational maximizer model is incomplete
because it leaves no room for offenders' perceptions of fairness, their
motivational styles, or their emotional reactions to hearing case process
or outcomes (Wiener, Bornstein, & Voss, 2006).
4.3. Mental health courts
Nowhere is the inadequacy of the rational actor model so clear as in
the policies that traditional courts apply to protect the public by
incapacitating mentally ill defendants, deterring them from carrying out
additional crimes, and deterring others from engaging in similar crimes.
Typically, these efforts fall short because defendants with mental health
issues do not always act as rational utility maximizers. Conventional trial
judges attend to defendants' psychological deficits to the extent that
psychiatric disorders reduce the defendants' culpability. If mental
difficulties do not rise to the level of an affirmative insanity defense,
or if they do not result in an “incompetency to proceed” finding, then the
only remaining way for the defendants' mental problems to impact
the judgment is as mitigation to justify a reduced punishment. Making
the matter more serious are several factors that have increased the
likelihood that police will arrest individuals with untreated mental
illness who commit minor offenses or acts of domestic violence. These
include the tightening of civil commitment criteria, the declining public
hospital census, limited access to community services, lack of
coordination and continuity of care, and negative public attitudes
about people in the community with mental illness who commit
nuisance offenses (Winick & Stefan, 2005; Winick, Wiener, Castro,
Emmert, & Skovran Georges, 2010-this volume). As a result, people
suffering from severe psychiatric symptoms now overcrowd local jails,
which lack treatment resources and are intensely stressful, resulting in
further decompensation and increased suffering. Moreover, they add to
the heavy caseloads of criminal and domestic violence courts, which are
designed to address more serious criminal behavior.
One remedy to this increasingly prevalent problem is to divert
individuals from jail into treatment through mental health courts
(Winick, 2003). Mental health courts are criminal courts with separate
dockets for those with mental illness, which divert offenders from the
criminal justice system into treatment (Goldkamp & Irons-Guynn, 2000;
King et al., 2009; Redlich, 2005; Redlich, Steadman, Monahan, Robbins,
& Petrila, 2006; Steadman, Davidson, & Brown, 2001; Winick & Stefan,
2005). Participants undergo court ordered treatment, take medication,
and participate in community-based services. The court praises success
in treatment and sanctions lack of compliance. Ultimately, the decision
to participate in a mental health court is voluntary so that offenders can
choose to defend themselves in a regular criminal court or agree to
participate in a mental health court (Redlich et al., 2006).
Rather than seeing the participants' problems as ones requiring
adjudication and punishment, the problem solving court views them as
psychiatric disorders and seeks to facilitate needed treatment. Inasmuch
as judges see their role as facilitating the rehabilitation and psychological well being of the offenders, this is an application of Therapeutic
Jurisprudence, the basic insight of which is that legal rules, legal
practices, and the way legal actors (such as judges and lawyers) play
their roles impose inevitable consequences on the psychological well
being of those affected. Nonetheless, some mental health court judges
rely on the rational actor model to control offenders. Redlich et al.
(2006) surveyed 90 mental health courts across the United States and
found that most did initially require clients to return for review hearings
either weekly or monthly but progressively lowered this standard as the
clients progressed through the system. Most importantly, almost all of
these courts (92%) used jail as a sanction with 57% using it in 5 to 50% of
its cases. A regression analysis showed that those mental health courts
that were most likely to use jail as a sanction had a larger number of
felons as clients and required the offenders to return to court more
frequently.
There is a paucity of empirical work on mental health courts. Those
studies that do exist are primarily descriptions of specific mental health
courts rather than general studies of multiple courts or the effectiveness
of their treatments on client outcomes (Schneider, Bloom, & Heerema,
2007). Often, these studies provide only basic program statistics such as
the number of defendants processed at different stages in the trial
process (Trupin & Richards, 2003). Although the efficacy of mental
health courts have not been demonstrated empirically, preliminary
outcome data from some courts and anecdotal accounts indicate that
these courts are somewhat successful in engaging participants in
treatment and reducing recidivism (Boothroyd, Poythress, McGaha, &
Petrila, 2003; Cosden, Ellens, Schnell, Yamini-Diouf, & Wolfe, 2003;
Redlich, 2005; Trupin & Richards, 2003). Reports appear on state
research and funding agency websites rather than in peer-reviewed
journals. Perhaps the best-studied mental health court is the Broward
County, Florida mental health court, which has been part of a number of
descriptive and outcome based studies. Compared to a control group,
individuals adjudicated in that mental health court received more
treatment for their psychiatric problems. Yet, changes in symptoms
were not significantly different between the groups (Boothroyd, 2003;
Boothroyd, Calkins Mercado, Poythress, Christy, & Petrila, 2005). The
explanation for this puzzling finding was that success in treatment
depends, in part, upon the quality of the treatment available in the
community. However, Christy, Boothroyd, Petrila, and Poythress (2003)
and Christy, Poythress, Boothroyd, Mehra, and Petrila (2005) did find
low levels of coercion, high levels of perceived fairness, and a slight
reduction in recidivism in this Broward County court.
Several research teams have attempted to compare larger numbers
of mental health courts on basic descriptive characteristics. For example
the Consensus Project Survey (2005) published data from 107 existing
mental health courts on eligibility requirements, sentencing options,
plea structures and agreements, punishments for failure to comply, and
a number of other measures to conclude that there is high variability
among the many courts that self classify as mental health courts, making
them difficult to study without an organizing structure or principle.
Similarly, Steadman and Redlich (2006) completed an in depth study of
R.L. Wiener et al. / International Journal of Law and Psychiatry 33 (2010) 417–427
421
7 mental health courts across the United States over a three month
period to try to develop a profile that described referrals and case
processing procedures, but they were also frustrated in their efforts,
finding few organized models or even similarities of approach. They
concluded that next steps should identify which offenders seem to do
well in mental health courts and why they do well. Without a theory of
how and why these courts work and for whom, outcome studies of their
effectiveness are nearly impossible. Because these courts rely on
Therapeutic Jurisprudence and therefore tailor interventions to the
needs of individuals, any model that describes mental health court
process must take into account the influence of law on perceptions,
judgments, and the health behaviors of mentally ill offenders.
before the Omaha drug court began. Although the researchers did
statistically control for seriousness of offense, gender, race/ethnicity,
and age, they had no consistent information on prior criminal history so
that matching on that factor was not possible. Although the drug court
participants were significantly less likely than traditional felony
offenders to be rearrested during the follow-up period, the drug court
participants were more likely than the earlier diversion participants to
be rearrested. While these results like many in the literature are
suggestive, it is difficult to reach conclusions without random trials.
Most important for the current proposal, without a theory of offender
rehabilitation, it is difficult to know what factors to control in quasiexperimental designs as in Spohn et al. (2001).
4.4. Drug treatment courts
4.5. Inconclusiveness of theory in problem solving courts
Lindquist, Krebs, and Lattimore (2006) point out that traditional
courts have dealt with drug offenders through the use of a deterrence
scheme. Research finds that invocation of sanctions can be effective if
anticipation of sanctions is clear and predictable, the actor believes
that self-control is achievable so that the sanction is not inevitable, the
failure to conform is detectable and punished each and every time it
occurs immediately after the transgression, and the punishment is
sufficiently severe to redirect the offenders' conduct (Marlowe &
Kirby, 1999). For these reasons, many courts rely on drug testing
offenders and applying sanctions for positive tests to reduce drug use
and recidivism (Harrell & Roman, 2001). Even problem solving drug
courts rely heavily on sanctions to modify offender behavior (National
Association of Drug Court Professionals (NADCP), 1997; Cooper &
Trotter, 1995; Goldkamp, 1994; Terry, 1999). In a recent qualitative
study, Lindquist et al. (2006) interviewed 86 stakeholders from 5
Florida judicial circuits, and found that drug courts were more likely to
use sanctions (e.g., jail time and treatment oriented sanctions) than
were traditional courts for similar types of offenders. However, drug
court judges tailored the sanctions more to the individual needs of the
participants.
Drug courts feature ongoing status hearings in front of a judge. Other
essential components include offenders completing substance abuse
treatment, complying with random drug tests (urine drops), judges
increasing negative sanctions for failure to comply with the court's
orders, and judges administering rewards for compliance (National
Association of Drug Court Professionals (NADCP), 1997). In pre-plea
programs that divert participants from jail, the court drops their charges
and expunges the record of those who successfully complete the
program and graduate (Marlowe, Festinger, Dugosh, Lee, & Benasutti,
2007; Marlowe, Festinger, Lee, Dugosh, & Benasutti, 2006). Judges hold
reoccurring hearings in which they evaluate the clients' progress to
determine whether to apply sanctions or rewards. The first drug court
program (still in operation) dates back to Dade County, Florida, in 1989
(National Criminal Justice Reference Service, 2005a;2005b; Nolan,
2001; Roman, Butts, & Rebeck, 2001; Wiseman, 2005). In 2007 (Nored
& Carlan, 2008) there were over 1699 drug courts in the United States
(Bureau of Justice Assistance, 2007). Early studies of drug courts
generally supported their effectiveness. For example, in 1997 the U.S.
General Accounting Office (GAO) reported on 20 evaluations of 16 drug
courts and concluded that drug courts reduced drug use and criminal
behavior among offenders. Further, Belenko (1998) updated the
research to summarize 30 evaluations in 24 studies and found that
criminal behavior was reduced significantly during the treatment
phases. However, Belenko and others (King et al., 2009) complain that
the methodology in these studies is not rigorous enough, often lacking
random trials and adequate control groups.
These methodological problems continue to plague evaluation
studies of drug courts. For example, Spohn, Piper, Martin, and Frenzel
(2001) studied a drug court in Omaha Nebraska comparing 3 groups:
Douglas County Drug Court participants, felony offenders in Douglas
County, and individuals participating in a diversion program started
To illustrate the inconclusiveness of theory in the area of problem
solving courts, consider a recent program of research in which Marlowe
et al. (2003) randomly assigned some offenders to undergo biweekly
judicial status hearings, which is a characteristic that the National
Association of Drug Court Professionals (NADCP) (1997) considers to be
a defining feature of drug courts, and others to undergo monitoring by
their case mangers. Although, the results showed no overall effect of the
judicial hearings on counseling attendance, urine results, self-reported
substance use or criminal activity, they did find that the judicial hearings
improved the outcome for individuals at higher risk for recidivism, i.e.,
those diagnosed with anti-social personality (APD) and those who had
prior histories of substance abuse treatment. In a follow-up experiment
in which Marlowe et al. (2007, 2006) randomly assigned high risk
individuals (those with APD and those with prior substance abuse) and
low risk individuals to either biweekly judicial hearings or hearings as
needed, they found that high risk participants, but not low risk offenders
in the biweekly treatment condition, outperformed high risk individuals
in the as needed hearing condition on measures of negative urine drops
and counseling sessions attended. In another follow-up study, the high
risk offenders with biweekly judicial hearings (as compared to high risk
offenders in the as needed hearing control group) were more likely to
graduate, provided more negative urine tests 6 months after program
completion, and reported less use of drugs and alcohol. While these
researchers stumbled onto risk factors that did seem to moderate
effectiveness of judicial supervision in drug courts, their work points to
the importance of developing a model for special problem solving courts
to direct future efforts in this area. Without such a model, researchers
are destined to continue conducting hunt-and-peck studies, which
sometimes find qualified results but which will never explain the
reasons for success, and therefore will never allow researchers to
understand how problem solving courts succeed or fail. Without a fuller
model of problem solving courts, it will be difficult to successfully
address critics such as Professor Quinn who opine the absence of an
organized understanding of how problem solving courts do or do not
influence defendants.
4.6. Domestic violence courts
Domestic violence courts apply drug court philosophy to problems of
family violence (Gover, Brank, & MacDonald, 2007; King et al., 2009;
Rottmann, 2000, Winick, 2000). Domestic violence court judges lead
interdisciplinary teams to protect victims while holding perpetrators
accountable for their physical aggression. Judges hold review hearings
to evaluate the progress that offenders make toward their goals of
rehabilitation relying on sanctions to punish lack of compliance and
rewards to reinforce progress (King et al., 2009; Winick, 2000). There is
little in the way of evaluative research regarding domestic violence
courts so that their effectiveness in comparison to traditional
approaches is an open question. However, in one study researchers
interviewed 50 defendant and 50 victim participants in the Lexington
County Criminal Domestic Violence Court in South Carolina and
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observed 30 hearings (Gover et al., 2007). The researchers found that in
almost all of the cases the court personnel (sheriff's investigators,
mental health workers, the attorneys, and the judicial officers) worked
together to resolve the cases. Free communication between the judge
and attorneys was common. Furthermore, both defendants and victims
reported positive experiences with the court personnel and although
some did not take the opportunity to speak to the judge, court
observations showed that they had the opportunity to do so. Thus, at
least in one domestic violence court, judges were inclined to make use of
a motivational approach rather than a traditional rational actor model to
simply increase offender accountability.
Although one quasi-experimental study in Brooklyn N.Y. suggested that Batterer Intervention Programs (BIP) can temporarily
reduce re-arrests for offenders in domestic violence cases, a similar
study in Broward County Florida found no results between the
experimental BIP program offenders and a control group on re-arrests
(Jackson et al., 2003). Despite the lack of data evaluating the
effectiveness of rehabilitative versus deterrent interventions on
reoccurrences of family violence (King et al., 2009), domestic violence
courts ostensibly follow a motivational model characteristic of
Therapeutic Jurisprudence (Winick, 2000). Therapeutic Jurisprudence
suggests that there are basic principles of motivation informed by
empirical research that should be the basis for judicial practice in all
problem solving courts (Winick & Wexler, 2003). King et al. (2009)
argues that these principles of motivation are founded in selfdetermination, the promotion of procedural justice, and offender
compliance. Winick and Wexler used behavioral contracting or
contingency management, an application of cognitive behavioral
theory and social cognitive theory, to explain the functioning of
problem solving courts and to suggest how they can be improved
(Winick, 1991; Winick, 2003; Winick & Wexler, 2003). Problem
solving courts that endorse a therapeutic jurisprudential approach
attempt to improve the mental health and wellbeing of those whose
maladaptive behavior brought them to court in the first place (Winick,
2006). Problem solving courts following a therapeutic jurisprudential
model apply a psychological lens in the legal context to inspire
motivation for treatment and to assure treatment compliance
(Winick, 2003; Winick & Wexler, 2003). They view defendants as
active processors who can and do adjust their responses to the
courtroom according to their perceptions of the fairness of their
treatment at the hands of the court, motivation states induced during
hearings, and anticipated emotions about future hearings. The role of
the judges and other court officers is to create an environment
through law and legal process that motivates, encourages, and
reinforces offenders to participate in services and to seek positive
outcomes.
Applying a motivational interviewing strategy (DiCLemente &
Prochaska, 1998), judges and other problem solving court officers in
these courts empower offenders to take charge of their own conduct.
Judges and treatment teams attend carefully to the motivational and
emotional structures of offenders rather than relying primarily on utility
maximization principles. Offenders examine their own behaviors and
confront the discrepancies between their values and their actions. The
judges assist offenders to 1) think about their anti-social and unhealthy
behaviors, 2) focus attention on choices to engage in anti-social
behavior, 3) develop plans to replace unhealthy behaviors with healthy
ones and 4) bolster their self-efficacy so that they will be willing to take
on treatment goals. As a result, offenders reestablish the links that they
have to their more positive motivations and attitudes and to significant
others who advocate prosocial choices (Ahmed, Harris, Braithwaite, &
Braithwaite, 2001; Johnstone, 2002; Roche, 2003; Sullivan & Tifft, 2001;
Von Hirsch, Roberts, Bottoms, Roach, & Schiff, 2003; Weitekamp &
Kerner, 2002). Thus, the goal of the problem solving judge is to motivate
offenders to engage in treatment and to develop plans to eliminate or
reduce unhealthy and anti-social behaviors (e.g., ignoring the rights of
others, using substances, assaulting others, wandering, urinating or
exposing oneself in public, and approaching others inappropriately) and
replace them with healthy behaviors (e.g., attending school or going to
work, engaging in positive social exchanges, reconnecting with family
and friends, and becoming more self-sufficient).
5. Therapeutic Jurisprudence model of problem solving court
Fig. 1 depicts a therapeutic jurisprudential model that focuses on
participants' reactions to the motivational interviewing approaches that
judges rely on in these court hearings. It hypothesizes that two paths
describe the manner in which offenders accept (or reject) treatment and
engage in (or withdraw) from the rehabilitative process and the court's
orders. The figure labels the first path, #1. This path focuses on offenders'
perceptions of justice and the way those perceptions influence beliefs
about the legitimacy of law. According to the group value model (Tyler &
Blader, 2003), distributive justice is the recipient's perception of the
fairness of the decision-making outcome and whether it is balanced
compared to the inputs of the act. Defendants who find that the
sanctions (or rewards) that they receive are commensurate with their
conduct believe the adjudication outcome was just. If hearing outcomes
are consistent with norms of fairness (equality and equity), offenders
experience distributive justice.
On the other hand, procedural justice refers to evaluations of the
formal decision-making procedure and whether the process was
conducted in an unbiased manner. To the extent to which defendants
believe that the process was unbiased and that they had enough voice to
influence decision outcomes, they will perceive that the process was
procedurally just or fair. Procedural justice research in a number of
domains has shown that when people experience procedural justice and
to a lesser extent, distributive justice, that they engage with the group,
adhere to its norms and respect the group's demands on their conduct
(e.g., Amiot, Terry, & Callan, 2007; Blader, 2007a,b; Fuller et al., 2006;
Gleibs, Mummendey, & Noack, 2008; Hakonen & Lipponen, 2008;
Mayer, Greenbaum, Kuenzi, & Shteynberg, 2009). In addition, they are
more likely to view their choice to participate as voluntary rather than
coerced, thereby to gain the psychological value of intrinsic motivation
and to avoid negative effects of coercion (Monahan et al., 2005; Winick,
2003). Furthermore, Tyler (2006) has established a link between
procedural justice and perceived legitimacy of authority and respect for
the law. Thus, to the extent to which problem solving court participants
find procedural fairness, they are more likely to engage with authority,
accept the demands of the court, and try to follow them.
Organizational psychologists have further divided procedural justice
into two components, a procedural factor (i.e., perceptions of the
impartiality the decision process itself) and an interactional factor
(i.e., perceptions of respect that the decision maker shows for the
recipient of the decision). Today, this distinction has been widely
adopted by organizational justice researchers (e.g., Bernerth, Armenakis, Field, & Walker, 2007; De Cremer, van Dijke, & Bos, 2007; Flaherty &
Moss, 2007; Forret & Love, 2008; Klendauer & Deller, 2009). Thus, if the
problem solving court judges treat defendants with respect and
sensitivity and make clear the reasons for decisions, offenders will
experience interactional justice or fairness.1 This delineation of the
different components of justice is well supported in the literature (Bies
& Moag, 1986; Colquitt, 2001; Leventhal, 1980; Shapiro, Buttner, &
Barry, 1994; Thibaut & Walker, 1975; Tyler, 1988, 2000, 2003).
Furthermore, researchers have shown that perceptions of fairness and
especially procedural justice help wrongdoers come to see the law as
legitimate, in which case they are more likely to comply with the court's
demands.
1
Some authors (Colquitt, 2001) have further separated interactional justice into
two components, interpersonal justice (being treated with dignity and respect) and
informational justice (receiving adequate explanations for decisional outcomes. The
current work includes items that measure both components separately.
R.L. Wiener et al. / International Journal of Law and Psychiatry 33 (2010) 417–427
423
Fig. 1. Therapeutic Jurisprudence model of problem solving courts.
For example in one study of alternative dispute resolution
procedures, which involve processes very similar to those in problem
solving courts, (i.e., the Canberra Reitegrative Shaming Experiment)
Tyler, Sherman, Strang, Barnes, and Woods (2007) found that increases
in procedural justice predicted drunk driving offenders' belief in the
legitimacy of the law as one of the outcomes of restoration conferences.
In addition, to the extent that offenders came to believe that significant
people in their lives were ashamed of their behavior but they still
respected them as individuals, and that their friends and family
members were ready to reintegrate the offenders back into the
significant others' own lives, the offenders came to believe in the
legitimacy of the law. Finally, the more they regarded the law as
legitimate, the less likely they were to re-offend. Similarly, the first path
to successful outcomes for problem solving court offenders (See Fig. 1)
depends upon fairness and re-integrative shaming. If offenders perceive
that the problem solving court is procedurally fair, produced a balanced
outcome, resulted in respect for the offenders, and reconnected them to
the positive aspects of their lives, they will view the law as legitimate. As
a result, they will comply with judicial orders and ultimately choose
healthier behaviors.
While no study that we know of has examined the connection
between procedural or distributive justice and outcomes in problem
solving courts, at least two studies have examined procedural justice
perceptions as outcomes among offenders in a mental health court. In a
recent study conducted in the Superior Court of the District of
Columbia's Mental Health Diversion Court (DCMHDC), Wales, Hiday,
and Ray (2010) interviewed 80 participants and found participants
reported strong positive experiences of procedural justice toward the
court and judge after participating in that court's procedure. Poythress,
Petrila, McGaha, and Boothroyd (2002) also reported elevated perceptions of procedural justice among participants in the Broward County
Mental Health Court as compared to other defendants in traditional
mental health courts.
Fig. 1 shows a second, more direct path (marked with #2) in which
the more judges are successful at empowering offenders and reconnecting them to their bases of support, the more these clients show specific
motivational strategies to increase healthy behavior, the more they will
anticipate positive emotions for succeeding at their rehabilitative work
and negative emotions, for failing. From a decision-making point of
view, participants in problem solving courts can commit two types of
mistakes in responding to judicial orders: errors of omission (i.e., failure
to adequately participate in ordered therapeutic services such as
individual and/or group therapy) or errors of commission (i.e., engaging
in anti-social behaviors that create public health problems such as acting
out aggressively, substance abuse, or engaging in nuisance behaviors).
An emerging body of social psychological research demonstrates that
different types of motivation minimize these errors. Regulatory focus
theory research (Camacho, Higgins, & Luger, 2003; Crowe & Higgins,
1997; Higgins, 1998, 2000, 2001, 2002; Higgins, Shah, & Friedman,
1997) shows that while people in a promotion motivational state seek
accomplishment and advancement by obtaining matches to desired end
states, those in a prevention motivational state seek safety and security
by avoiding mismatches to the desired end state. Accordingly,
promotion motivation causes people to work diligently to accomplish
their goals and avoid errors of omission, while prevention motivation
produces vigilant action and avoidance of errors of commission
(Higgins, 1997;1998, 2000, 2002). Furthermore, the effects of regulatory
focus result from both situational inducements and activation of
individual difference traits (Cesario, Higgins, & Scholer, 2008; Higgins,
1997, 1998, 2001, 2005, 2006; Higgins, Roney, Crowe, & Hymes, 1994;
Lee & Aaker, 2004).
Arguably, the most destructive behaviors for offenders are errors of
commission leading to more illegal conduct and a cycle of recidivism
and re-arrest. Therefore, when clients leave problem solving court with
a heightened sense of prevention motivation they are most likely to be
successful because they will avoid future anti-social acts. However,
errors of omission (failing to participate in ordered therapeutic
intervention) are also detrimental; therefore, an increase in promotion
focus and engaging in appropriate goal behavior may also increase the
likelihood of offender success.
Motivation and anticipated emotion are closely linked to one and
other and offer related but separate routes to offender success. In a
recent paper, Baumeister, Vohs, DeWall, and Zhang (2007) argued that
experienced emotion acts as feedback serving to continually update our
records of past successes and failures. Thus, offenders who experience
positive emotions or negative emotions after encounters with the courts
may come to anticipate the same for future encounters. Furthermore,
offenders may come to anticipate positive (or negative) emotions
following their own successes (or failures) in achieving the problem
solving court requirements. The power of anticipated positive and
negative emotions to guide subsequent behavior is strong and
empirically supported in many situations (Loewenstein, Weber, Hsee,
424
R.L. Wiener et al. / International Journal of Law and Psychiatry 33 (2010) 417–427
& Welch, 2001). Most impressively, Mellers and colleagues (Mellers,
2000; Mellers, Schwartz, Ho, & Ritov, 1997; Mellers, Schwartz, & Ritov,
1999) showed that anticipated pleasure explained choices beyond the
logic of the expected utility inherent in the rational actor model in a
variety of real world and laboratory contexts (e.g., financial gambles,
seeking feedback on test scores, and pregnancy tests). However, these
findings are more complicated, because people are inaccurate in
forecasting their emotions. This is especially true for problem solving
court participants whose emotional instability likely caused the legal
violation that triggered court intervention.
Impulsivity (Hsee & Hastie, 2006; Slovic, 2001) causes people to pay
more attention to immediate payoffs than to distant outcomes, even
when the cost of those outcomes far exceeds the immediate payoffs. As a
result, people sometimes show impact bias (Hsee & Hastie, 2006) and
inaccuracies in forecasting accurate emotions for outcomes that they
will eventually come to experience (Gilbert, Pinel, Wilson, Blumberg, &
Wheatley, 1998; Gilbert & Wilson, 2000; Wilson & Gilbert, 2003;2005).
In Gilbert and colleagues' work, people overestimated the emotional
consequences of outcomes of a variety of appetitive choices producing,
among other effects, a durability bias, an over-estimate of the length of
time that one would experience affect after an outcome. It follows, that
participants in problem solving courts may anticipate wrongly the
feelings that they will experience when they obtain either positive or
negative outcomes following hearings.
Wilson, Wheatley, Meyers, Gilbert, and Axsom (2000) coined the
term “focalism” to refer to the situation in which people focus too
much attention on the future event in question and too little on other
events that are likely to co-occur. These authors found strong
evidence of a durability effect in college students who overanticipated experiencing long periods of happiness or unhappiness
when their school football team won or lost a weekend game. Problem
solving court offenders may also show the effects of focalism because
they may not consider the other aspects of their lives that will
co-occur with the experience of focal events. For example, offenders
may over-estimate the negative emotions associated with attending
treatment and counseling sessions because they think about these
events in a vacuum without considering the other events in their lives,
which may dilute the focal events. They may, as well, over-estimate
the positive feelings that will follow successful experiences in court
hearings. From this literature and these observations, it follows that
regardless of their actual feelings, offenders in problem solving courts
will be more likely to comply with court orders and program
requirements to the extent that they forecast positive affect
(or negative affect) in subsequent court hearings if they follow (or
failed to follow) these requirements.
Finally, client demographic, personality, problem solving, psychopathology, and devotion to treatment efforts may moderate judicial
interventions and the influences of procedural, distributive, and
interactional justice, re-integrative shaming, offender motivation, and
anticipated emotion. While the central feature of our model concerns
the way in which court policy influences offenders' perceptions of
hearing fairness, motivation, and anticipated emotions to promote
healthy engagement, offenders' attributes may facilitate or impede
these psychological processes. Fig. 1 represents these client attributes as
potential moderators and possibly as mediators.
5.1. Testing the model
We are currently collecting data to conduct an initial test of this
social cognitive model, which predicts the impact of the proceedings of
problem solving courts on client behavior and case outcomes. The
research team is administering surveys and outcome interviews to a
sample of participants in several problem solving courts in South
Florida, which include drug courts, mental health courts, and domestic
violence courts. Rather than treating offenders mechanically through
rational actor based policies of deterrence and incapacitation, these
courts seek to spark offenders' understanding of the desirability of
treatment and to engage their intrinsic motivations. At the initial
hearing, the researchers administer to each defendant a set of trait
characteristic surveys including measures of psychiatric symptoms,
childhood difficulties, problem solving capabilities, and a demographic
sheet. After the last and final hearing, the research team conducts a
quality of life interview with each candidate and conducts a case review
(from the court records), coding demographic and diagnostic history
data, as well as final outcomes. At all hearings (including the initial and
final hearings), the team administers measures of procedural justice, reintegrative shaming, legitimacy, anticipated emotion, and motivation.
The surveys tap into expectations and actual experiences of justice,
emotions, and motivations that result from participating in the hearings.
The research team works with each of the offenders answering
questions, recording answers, and explaining the instruments and
their meanings as necessary. The judges and their research staff in the
courts who are part of the study have agreed to provide space for
administering and storing survey materials. However, the judges are
unaware of which defendants volunteer to be participants in our study.
The court staff receives no feedback from our data collections on any of
the clients so that our work will have no impact on the process or
outcome of any case. At the end of the study, the research team will
present a complete set of findings to all of the judges preserving the
anonymity of all defendants. Our goal is to test both paths in the model
and the role of trait characteristics as moderators of those paths. We will
revise the model according to the empirical findings.
6. Therapeutic Jurisprudence, law, and psychology
Therapeutic Jurisprudence, an interdisciplinary approach to understand legal issues through psychological analysis, calls for researchers,
mental health workers, lawyers, attorneys, and judges to apply techniques
drawn from psychology and social work to motivate offenders and
patients to accept rehabilitation and treatment and to pursue it
successfully. It provides the theoretical foundation for problem solving
courts, in which judges play active roles in the rehabilitation of offenders
whose substance abuse, domestic violence, and untreated mental illness
leads to unhealthy and socially inappropriate behavior. Individuals who
voluntarily opt into these courts enter into a behavioral contract in which
they agree to participate in treatment, to be monitored for compliance,
and to report to court periodically to discuss their progress. Judges in
problem solving courts lead community treatment teams and play an
important role motivating participants and directing treatment, and
preventative and educational services for offenders. In 2000, the
Conference of Chief Justices and the Conference of State Court Administrators, following a joint task force analysis, adopted a resolution
approving the growing movement in the direction of problem solving
courts, including the use of principles of Therapeutic Jurisprudence in
performing their functions. These principles include integration of
treatment services with judicial case processing, ongoing judicial
intervention, close monitoring of and immediate response to behavior,
multidisciplinary involvement, and collaboration with community-based
and governmental organizations. A growing body of Therapeutic
Jurisprudence scholarship has also addressed how judges in problem
solving courts can apply principles of Therapeutic Jurisprudence in their
work (Winick, 2003; Winick & Stefan, 2005; Winick & Wexler, 2003).
Absent in the research literature in this area is any model of how
participants in problem solving courts react to the judicial officers as
problem solving teams and motivational interviewers. This work is the
first step in developing a participant based model to explain how
problem solving courts influence the behavioral choices of offenders
who opt to engage in an alternative dispute resolution arena in which
they voluntarily give up some autonomy and control in exchange for the
guidance of legal professionals who try to assist them in reversing the
problems in their lives that got them in trouble with the law in the first
place. Once a successful model is specified and tested, researchers will
R.L. Wiener et al. / International Journal of Law and Psychiatry 33 (2010) 417–427
be able to study (and experiment) with different types of judicial
interventions and styles to learn more about how problem solving
courts work and in what ways they influence the psychological states of
offenders. This work will go well beyond the simple mechanical push
and pull of the rational actor model to help explain the manner in which
offenders respond to the demands of the legal system. Future work
should take a final model and apply it broadly to other interventions in
problem solving courts and traditional courts to learn how judges can
and do influence outcomes. Additional investigations will include
comparisons among offenders with different ethnic backgrounds,
nationalities, and cultural viewpoints. The findings of this work will be
valuable to both researchers interested in understanding how the law
brings about change and for practitioners (judges, lawyers, social
workers, and psychologists) who are trying to make the courts work
better for people who abuse substances, act out violently against their
significant others and who are in need of psychological services to
rehabilitate their lives to eliminate anti-social behavior.
7. Another voice in debate
We conclude where we began, with the insightful and important
comments of Professor Quinn (2009) who argued very effectively that
the problem with the current conversation about problem solving
courts in both the academic literature and perhaps more importantly in
the policy debate, is that it only tells a small part of the story. The one
loud voice that we easily and frequently hear, speaks of these courts as
benevolent, effective, and indeed promising alternatives to the
traditional criminal court for people with social and psychological
problems that give rise to their legal difficulties. Quinn makes it clear
that she is interested in hearing other voices, those of people who have
looked more critically at these reform innovations. However, she agrees
with Herbert Eastman (1995) that the voices should not be purely
personal; instead, they should reflect what we know about the social
reality of the way in which these courts operate. We agree with
Professor Quinn that we need to make room in the conversation for
voices that look more critically at these specialized courts and that there
is room for voices from the past to contribute to the current debate.
However, the voice that we think has the most to offer is the one that
tells the story of how these courts function currently rather than how
they started out in the 1930s. We need to know how they currently
influence (or fail to influence) defendants, how they currently impact
(or fail to impact) the psychological and social problems of defendants,
and whether they currently impact psychological processes that are
different from the ones that we can observe in traditional criminal
courts. The answers to these questions require a model of how modern
problem solving court judges, attorneys, and teams influence perceptions of justice, motivate offenders, and how they influence the
emotional reactions of defendants. Developing such a model and testing
it is consistent with the approach that scholars of Therapeutic
Jurisprudence would offer. The contribution of the current paper is
that it makes use of tested theories in social cognitive psychology to
construct such a model. We are currently collecting data to test it and
hope to continue in the future. In the end, the interdisciplinary effort
that combines different areas of work (here law, social psychology, and
clinical psychology) offers the best solution to applied problems. There
is no better vehicle for conducting this work than the framework offered
through Therapeutic Jurisprudence.
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