Therapeutic Jurisprudence

Justice Center, University of Alaska Anchorage. (Spring 2009). "Therapeutic Jurisprudence." Alaska Justice Forum 26(1): 10–12. This article discusses therapeutic jurisprudence and describes therapeutic and problem-solving courts and their common elements. Therapeutic courts currently operating in the Alaska Court System — including addictions (drug and alcohol), mental health, and other therapeutic courts — are described, as well as other programs in Alaska that have been developed to address particular issues falling under the rubric of therapeutic jurisprudence, including community justice centers.

The creation of the term, “therapeutic jurisprudence” in the late 1980s has been attributed to University of Arizona law professor David Wexler. The concept was further developed with his colleague, University of Miami School of Law professor Bruce Winick, through their work in mental health law. Professor Wexler in a 1999 lecture at a disabilities law symposium stated that therapeutic jurisprudence “focuses on the law’s impact on emotional life and on psychological well-being.” Wexler and Winick wanted to concentrate on the capacity of the law to both help, as well as hinder, positive outcomes for defendants, and on the need to carefully look at the possible results of a legal decision. Many courts have adopted the perspective of therapeutic jurisprudence in dealing with particular types of cases, especially drug, alcohol, mental health, and family issues, and the concept of therapeutic courts has grown out of this approach.

The National Center for State Courts has noted that therapeutic courts, like all courts, look at the seriousness of the crime and appropriate sanctions, but in addition therapeutic courts look closely at treatment options, likelihood of rehabilitation, willingness of the offender to participate in treatment, and ways to create positive outcomes for the offender and society. Therapeutic courts strive to balance the letter of the law and the spirit of the law in addressing issues of fairness to offenders and to victims and communities. Policymakers are interested in therapeutic courts because of their demonstrated ability to reduce recidivism and incarceration, and because they may help with growing caseloads.

Courts that operate under the umbrella of therapeutic jurisprudence are also sometimes called “wellness courts” or “problem-solving courts.” The term “wellness” has been related to Native American views on healing and peacemaking. The first Alaska court dealing with alcohol abuse offenders in this new way was co-founded in Anchorage in 1999 by District Court Judge James Wanamaker and Janet McCabe of Partners for Progress, and the term “Wellness Court” was purposely selected because of its link to the Native view of justice. The Center for Court Innovation has reported that “problem solving emerged first in policing in the early 1980s but by the end of the decade had been adapted by prosecutors’ offices, probation departments, and state courts.” The terms therapeutic court, wellness court, and problem-solving court are now often used interchangeably. In 2008, the National Drug Court Institute found there were over 2,500 problem-solving courts in the United States.

The Bureau of Justice Assistance Center for Program Evaluation and Performance Measurement has identified common elements of all problem-solving courts:

  1. Focus on outcomes—providing positive outcomes for the offender, victim and society.
  2. System change—promoting reform in how government responds to problems such as alcohol and drug abuse and mental illness.
  3. Judicial involvement—engaging judges in a more hands-on approach to addressing problems and changing behavior.
  4. Collaboration—working with groups outside the justice system, e.g., treatment providers.
  5. Non-traditional roles—taking less common approaches, such as being less adversarial.
  6. Screening and assessment—using these tools to identify which individuals are appropriate to refer to problem-solving courts.
  7. Early identification of potential candidates—using screening and assessment tools early in the process of the defendant’s involvement in the criminal justice system.

Therapeutic jurisprudence is also a topic of international interest. The webpage for the International Network on Therapeutic Jurisprudence on the University of Arizona Law School website promotes international dialogue on this issue and reports on therapeutic jurisprudence courts and law school courses outside the U.S., including Canada, Australia, and Brazil.

In Alaska, the therapeutic jurisprudence approach has resulted in the creation of a number of therapeutic courts. The sentence for an offender is dependent on his or her willingness to participate in these courts. Most states have a preponderance of drug courts; however, in Alaska, alcohol courts are the primary type of problem-solving court. Problem-solving courts seek to involve collaboration with the court, the prosecution and defense attorneys, as well as other agencies and community partners; provide connections with treatment/service providers; increase motivation for compliance by the offender; and maintain on-going judicial supervision.

What follows is a list of the current courts with a brief descriptive title of the issues each addresses. Details of the court procedures and process vary for each type of court, but all seek to incorporate the elements common to problem-solving courts.

Addictions Courts (Alcohol and Drug)

  • Anchorage Wellness Courts
    Anchorage Felony DUI Court
    Anchorage Felony Drug Court
    Anchorage Municipal Wellness Court (alcohol-related misdemeanors)
    Anchorage State Wellness Court (alcohol-related misdemeanors)
  • Bethel Therapeutic Court (drug and alcohol-related misdemeanors and felonies)
  • Fairbanks Wellness Court (felony DUI)
  • Juneau Therapeutic Court (felony and misdemeanor DUIs and alcohol-related misdemeanors)
  • Ketchikan Therapeutic Court (misdemeanor and felony DUIs)

Mental Health Courts

  • Anchorage Coordinated Resources Project (misdemeanors)
  • Fairbanks Juvenile Treatment Court (excluding violent and sexual offenses)
  • Palmer Coordinated Resources Project (misdemeanors)

Other Courts

  • Alaska Veterans Court (Anchorage—misdemeanors—assists with connecting with Veterans Administration services as needed)
  • Family CARE Court (Anchorage—Child-In-Need-of-Aid (CINA) cases—parents who have addiction issues and face losing custody)

In addition to these courts, other programs have been established to address particular issues:

Barrow Misdemeanors Resources Project: This program has one staff person who assists self-represented clients identified as probably having Fetal Alcohol Spectrum Disorder (FASD), other cognitive impairments, substance abuse issues, and/or mental health issues. If the offender pleads out and enters the program, the coordinator facilitates getting an alcohol or mental health assessment, and then works with the offender to ensure compliance with any court orders, e.g., treatment, payment of fines, community service, etc. The coordinator also works with families of cognitively impaired individuals and offers information on alternatives to incarceration, on benefits for which the individuals may be eligible, and on guardianship and conservatorship of adults.

In a separate program, there is also inter-agency cooperation with the probation officer to provide additional assistance for probationers with mental health issues.

Anchorage and Juneau Petition to Revoke Probation Adjudication/Disposition Projects (PTRP): These programs deal with misdemeanor cases and offenders who are not compliant with terms of probation, most often with regard to Alcohol Safety Action Program (ASAP) participation and Community Work Service (CWS). The PTRPs provide real-time compliance reports to the court, defense and prosecution, and have streamlined caseload and increased compliance.

Anchorage Operators without Licenses (OWL)—suspended motor vehicle license offenses: This program works with offenders to determine what is required to reinstate their driver’s license, e.g., payment of fines, re-taking of a test, payment of accident damages, etc. The Department of Motor Vehicles provides a checklist to the court and the prosecution and defense attorneys outlining what is required. The court provides ongoing judicial supervision to motivate participants to obtain license reinstatement.

A 2008 report by the National Drug Court Institute noted that problem-solving courts continue to grow, and their focus in the United States now includes the following types of courts: offender reentry, gun, community, mental health, domestic violence, prostitution, parole violation, homeless, truancy, child support, integrated treatment, and gambling. The number of Alaska’s problem-solving courts and projects also continues to grow, and additional analysis of data will assist in gauging the efficacy of these programs.

Community Justice Centers

Community Justice Centers or community courts have evolved as another form of problem-solving court. As the name indicates, these centers are located in neighborhoods or communities and are designed to meet the specific needs of residents. Extensive input by residents is critical to the development of these programs. The focus is generally on community-based consequences for wrong-doing. Panels of trained volunteers operate the courts, and consult with legal experts as needed. These courts work in cooperation with law enforcement, state courts, and social service agencies.

Other types of community justice centers actually provide legal representation in state and tribal courts for community members.

Mountain View Community Justice and Family Service Center: This center is awaiting funding while in the final stages of development, and is a project of Anchorage United for Youth. The Mountain View Center will focus on family and youth, particularly on non-violent low-level offenses by youth. The Center will be an alternative to Youth Court and the state juvenile justice system. Referrals to the Center will be evaluated on a case-by-case basis. A trained panel of community volunteers will focus on community-based consequences for youth and connecting youth and their families to social and educational services. Community engagement is a critical goal for the project and will include multilingual focus groups, interviews, surveys for adults and youth, and a Photovoice project for youth to determine the needs and ideas of the community. After the needs assessment/community engagement process, plans include hiring multilingual case managers and training panel volunteers.

Sitka Family Justice Center: This justice center has been in operation since 2006 and is funded by the U.S. Department of Justice Office on Violence Against Women. The Center provides civil legal representation in both state and tribal court, and works closely with shelter advocates, law enforcement, and the district attorney. Their work is focused on support for victims of domestic violence, and assistance extends to civil legal cases that may arise from a domestic violence incident. Common issues are custody, divorce, and long-term protective orders. The program is expanding to include assistance with bankruptcy filings in 2009. The Center has a full-time civil attorney and a full-time legal assistant. The program is administered by the Sitka Tribe of Alaska; however, services are available to all members of the Sitka community.