an introduction to special jurisdiction courts

Publisher’s note

An introduction to special jurisdiction courts

John Petrila*

Chair and Professor, Department of Mental Health Law and Policy,

Louis de la Parte Florida Mental Health Institute, University of South Florida,

13301 Bruce B. Downs Boulevard, Tampa, FL 33612, USA

Courts can hear only those cases over which they have jurisdiction. Typically, courts derive

their jurisdiction over particular types of cases from a constitutional or statutory provision.1

The manner in which courts exercise their jurisdiction may be modified by judicial decisions

expanding or limiting jurisdiction in some types of cases.2 However, within these constraints,

courts typically hear a wide variety of cases. For example, a criminal court will process many

different types of charges while a civil court may hear a wide variety of commercial disputes

and tort litigation.

Several countries have created special jurisdiction courts to hear specific types of disputes.

For example, many countries have created business courts to create a forum for commercial

disputes. These courts are often created to achieve efficiencies in resolving certain types of

cases. Other special jurisdiction courts also have been created for the purpose of gaining

access to treatment for some types of criminal defendants, or to solve other types of personal

and social problems that traditionally do not fall within the province of judicial decision

making.

These courts, particularly treatment-oriented courts, have proliferated in the last decade.

For example, in Florida alone, there are special courts for career criminals, families, domestic

violence, drug offenses, traffic offenses, juveniles, and teens, as well as a court devoted to

teen smoking.3 These treatment-oriented courts have grown rapidly not only in the United

PII: S0160 -2527 (02 )00206 -6

* Tel.: +1-813-974-9301; fax: +1-813-974-9327.

E-mail address: [email protected] (J. Petrila).1 Philip A. Talmadge, Understanding the limits of power: judicial restraint in general jurisdiction court

systems, Seattle University Law Review 22 (1999) 695.2 Mary Twitchell, The myth of general jurisdiction, Harvard Law Review 101 (1988) 610.3 Bennett H. Brummer, Independent, professional judgment: the essence of freedom, St. Thomas Law Review

10 (1998) 607, 624.

International Journal of Law and Psychiatry

26 (2003) 3–12

States but in Australia,4 Canada,5 and Europe.6 In addition, other countries, for example

South Africa,7 have developed special courts designed to accommodate the interests of

victims.

This article briefly discusses the characteristics of special jurisdiction courts, and the

reasons they have come into existence. It focuses particularly on drug courts and mental

health courts, and several core issues that have arisen in the development of treatment-

oriented courts.

1. Special jurisdiction courts: a brief overview

Special jurisdiction courts may be defined as ‘‘forums of highly limited jurisdiction to

which all of the cases of a particular type are channeled.’’8 Advocates for special jurisdiction

courts argue that such courts introduce efficiency into the adjudication of certain types of

cases; the theory is that the specialist tribunal will ‘‘inject doctrinal stability’’ into the area of

law for which it is responsible, thereby providing more predictability to those affected by the

particular area of law and reducing opportunities for forum shopping.9 Supporters also argue

that such courts create a more coherent body of law than that created by multiple courts

hearing the same type of cases, and that this will reduce litigation.10

Special jurisdiction courts are not a peculiarly American development, nor are they found

only in European-influenced legal systems. It is reported for example that the Aztecs had a

number of special jurisdiction courts.11 Some of the earliest special jurisdiction courts were

not treatment-oriented courts, but were created to achieve efficiencies and predictability in the

4 The drug court, AAP Newsfeed, April 4, 2000 (reporting on the first year of operation of a Drug Court in

New South Wales); Urine tests may be compromising drug court: study, AAP Newsfeed, April 4, 2000 (discussing

the same court); Youth drug court on trial, Sydney Morning Herald, July 26, 1999, p. 2 (discussing the extension

of a drug court in New South Wales to include a youth drug court).5 Paul Bentley, Drug courts: a more effective alternative, The Lawyers Weekly 19, January 14, 2000 (noting

that the first Drug Treatment Court opened in Toronto on December 1, 1998); Penny Stuart, Mental health courts

connect people to services: treatment vs. punishment, Journal of Addiction and Mental Health 2 (1999) 13.6 Jayne Savva, Judge calls for American-style drug courts, Daily Mail, April 18, 2000, p. 34; Eithne

Donnellan, New drug court is aiming to rehabilitate, The Irish Times, January 10, 2001, p. 7; Paul Gilbride,

American-style system aims to help offenders kick habits and reduce crime; Scotland to follow USA with first drug

court by autumn, The Express, February 22, 2001, p. 17; Polish parliament completes work on anti-drugs bill,

BBC Worldwide Monitoring, October 26, 2000 (reporting on a bill that would permit courts to order compulsory

treatment for drug-related offenses); Terry Thomas, Drug testing and treatment orders, New Law Journal 149

(1999) 1015 (describing treatment-oriented drug courts in England).7 See Walker and Louw, this issue.8 Rochelle C. Dreyfuss, The sixth Abraham L. Pomerantz lecture; forums of the future: the role of specialized

courts in resolving business disputes, Brooklyn Law Review 61 (1995) 1, 5.9 Rochelle C. Dreyfuss, The federal circuit: a case study in specialized courts, New York University Law

Review 64 (1989) 1, 2.10 Id.11 Francisco Avalos, An overview of the legal system of the Aztec Empire, Law Library Journal 86 (1994) 259.

Avalos reports that the Aztec legal system had commercial courts, a military court, and a religious affairs court.

J. Petrila / International Journal of Law and Psychiatry 26 (2003) 3–124

adjudication of certain types of cases. For example, probate courts were created in part to

replace an English system in which three different types of courts (ecclesiastical, common

law, and chancery courts) claimed jurisdiction over different issues involved in the

distribution of a decedent’s goods.12 In the United States, a Federal Court of Claims since

the mid-19th century has exercised jurisdiction over contract claims filed against the United

States government.13 Business courts are another type of specialty court found in a number of

countries.14

While advocates suggest specialized courts will introduce various efficiencies into the

administration of justice while also improving the quality of justice, such courts have their

critics. Some argue that such courts may develop ‘‘tunnel vision’’ with judges ‘‘captured’’ by

the specialty bar that appears before them. Others argue that such courts are inherently

isolated and that this isolation, combined with a repetitive workload, may lead to a body of

law out of touch with other areas of law and may make it difficult to attract top jurists.15

12 Sarajane Love, Estate creditors, the constitution, and the uniform probate code, University of Richmond

Law Review 30 (1996) 411.13 The United States Court of Claims was created in 1855 to create a forum for private citizens to pursue

contract claims against the federal government. Prior to its creation, individuals could not obtain relief in the

courts because suits were barred by the doctrine of sovereign immunity, and rather had to petition Congress for

relief. Richard H. Seamon, Separation of powers and the separate treatment of contract claims against the federal

government for specific performance, Villanova Law Review 43 (1998) 155. In an early example in the United

States of consolidating a type of case in a special court to obtain efficiencies and predictability in processing such

cases, Congress assigned cases arising from the Civil War to the Court of Claims. Floyd D. Shimomura, The

history of claims against the United States: the evolution from a legislative toward a judicial model of payment,

Louisiana Law Review 45 (1985) 625.14 ‘‘Business courts’’ are most often special courts designed to hear commercial disputes. Advocates suggest

that such courts are necessary for a variety of reasons: These include the fact that many business cases are complex

and time-consuming, drawing resources from courts with many other cases on their dockets; judges sitting on such

courts in theory will develop special expertise that will ‘‘maximize their level of performance’’ and result in a

more predictable set of legal principles. Kimberly A. Ward, Note and comment: getting down to business—

Pennsylvania must create a business court, or face the consequences, The Journal of Law and Commerce 18

(1999) 415, 421–422. In the United States, such courts exist in New York, Wisconsin, Illinois, North Carolina,

and New Jersey. Ember Reichgott Junge, Business courts: efficient justice or two-tiered elitism?, William Mitchell

Law Review 24 (1998) 315. In Maryland, a task force created by the state legislature recommended the creation of

specialized business court judges and mediators, who would adjudicate not only commercial disputes but those

arising from the Internet, among other technologies. MD panel urges biz court, The National Law Journal,

November 27, 2000, p. B1. There are also business courts in existence or planned in many other countries, for

example, Indonesia (Jakarta Plans Business Court, The Financial Times (London), July 3, 2000, p. 1), the Czech

Republic (Zeleny calling for court to liquidate CME-owned company CNTS, CTK National News Wire, August

17, 2000), Luxembourg (Europe online declared bankrupt, Agence France Presse, August 2, 1996), England

(Proposed changes to control access to the commercial court, New Law Journal 136 (1986) 1160), and Wales

(Trials of small business, Scotland on Sunday, May 7, 2000, p. 7). The move toward business courts has been

accompanied in Europe by efforts to create a unified business code. Peter Gottwald, Principles and current

problems of uniform procedural law in Europe under the Brussels convention, St. Louis–Warsaw Transatlantic

Law Journal 1997 (1997) 139.15 Rochelle C. Dreyfuss, A case study in specialized courts, op. cit. n. 9, p. 2–3. See also George E. Dix, The

death of the commerce court: a study in institutional weakness, American Journal of Legal History 8 (1964) 238.

J. Petrila / International Journal of Law and Psychiatry 26 (2003) 3–12 5

These debates have occurred almost exclusively at the theoretical level, as there are few data

to buttress the conclusions either of advocates or critics of special jurisdiction courts.16

2. Treatment-oriented special jurisdiction courts

Some special-jurisdiction courts have developed to apply a rehabilitative philosophy to

certain types of cases. These may be civil courts, for example, family court, or they may be

criminal courts, for example, drug courts or mental health courts. These courts are often

based on the assumption that treatment and other types of problem solving responses are

more appropriate than punishment for certain types of individuals. Such courts have also

sometimes been called ‘‘problem-solving courts.’’17 One commentator has suggested that

problem-solving courts share five characteristics: the court hears an expanded scope of

nonlegal issues; the court uses its authority to solve nonlegal as well as legal problems

arising from the individual’s case; the court considers and attempts to effect outcomes, for

example, sobriety, that go beyond application of the law; the court attempts to foster

increased collaboration between government and nongovernment entities to accomplish

shared goals; and judges and attorneys find themselves playing dramatically new roles.18

These courts may also be designed in part to achieve the efficiencies associated with other

types of special-jurisdiction courts, but problem-solving in a variety of spheres is their core

concern.

In many ways, the prototype for such courts is the juvenile court. In the United States, the

first juvenile court was created in 1899. Such courts, found in many countries throughout the

world, were explicitly rehabilitative in philosophy, were premised on assumptions about the

developmental maturity and competency of juveniles compared to adults,19 and were

reactions in part to the often inhumane treatment of juveniles in adult prisons and juvenile

16 Rochelle C. Dreyfuss, The role of specialized courts in resolving business disputes, op. cit. n. 8, p. 5.17 Derek A. Denckla, Essay: forgiveness as a problem-solving tool in the courts: a brief response to the Panel

on Forgiveness in Criminal Law, Fordham Urban Law Journal 27 (2000) 1613.18 Denckla, op. cit. n. 17, p. 1615.19 One group of commentators characterizes juvenile court as founded on ‘‘a few key beliefs and attitudes

fundamental to our contemporary, Western European attitudes toward children’’ including beliefs that children are

dependent on adults; are developing emotionally and other ways and as a result are malleable behaviorally and

impressionable psychologically; and have less competent levels of understanding than adults. Ira M. Schwartz,

Neil Alan Weiner, Guy Enosh, Nine lives and then some: why the juvenile court does not roll over and die, Wake

Forest Law Review 33 (1998) 533, 535. Such courts have been used in many other countries than the United

States, see, e.g., Sanjeev S. Anand, Catalyst for change: the history of Canadian juvenile justice reform, Queen’s

Law Journal 24 (1999) 515. Another commentator observes that ‘‘no civilized nation’’ tries its youngest offenders

in ordinary criminal court, and that juvenile courts have been created in Europe, Japan, and Commonwealth

nations. Franklin E. Zimring, The common thread: diversion in juvenile justice, California Law Review 88 (2000)

2477, 2479.


detention facilities.20 While as recently as the late 1980s, there were continuing calls to

expand the jurisdiction of juvenile courts in order to reduce the use of custody for juveniles,21

the last decade has seen unprecedented attacks on the rehabilitative philosophy of the juvenile

court, with corresponding legislative action that has made such courts more like adult court.22

The underlying philosophy of juvenile court has come under attack, with some critics

characterizing the emphasis on considering delinquency as a treatable ‘‘disease’’ as incon-

sistent with providing justice.23

While juvenile courts faced unprecedented criticism, the adult criminal justice system in

the early 1990s began a search for alternatives to incarceration to some types of

offenders. This was true particularly for defendants with substance abuse disorders and

mental illnesses, and marked a response to concerns over the prevalence and impact of

mental illness and substance abuse among confined populations.24 Some jurisdictions

have attempted to divert people into treatment prior to arrest.25 Other jurisdictions in

20 Dan Macallair, Emerging from darkness: reinventing San Francisco’s juvenile justice system, Stanford Law

and Policy Review 7 (1995–1996) 31 (criticizing the reliance by juvenile justice systems in general and San

Francisco’s in particular on detention facilities). At about the same time that the juvenile court was created, the

first state family courts were created as well. These courts were designed to provide a nontraditional,

nonadversarial forum in which to resolve a family’s legal issues within one court while minimizing harm to

families and children in crisis. While these courts have not enjoyed the popularity of juvenile and other treatment-

oriented courts, several jurisdictions use them and there have been new calls for their use. LeRoy L. Kondo,

Therapeutic jurisprudence: issues, analysis, and applications: advocacy of the establishment of mental health

specialty courts in the provision of therapeutic justice for mentally ill offenders, Seattle University Law Review 24

(2000) 373, 401–402. See also Gloria Danziger and Jeffrey A. Kuhn, Drug treatment courts: evolution,

evaluation, and future directions, Journal Health Care Law and Policy 3 (discussing a unified family court) (1999)

166, 177–190.21 Gareth Parry, Juvenile courts should deal with offenders under 18, The Guardian, January 23, 1989, p. 6.22 One article observed that ‘‘as the juvenile court approaches its 100th birthday. . . its future is less secure than

at any point in its history’’ attributing the challenges to ‘‘historic increases in juvenile homicides’’ and other

crimes. Thomas F. Geraghty and Steven A. Drizin, Foreword—the debate over the future of juvenile courts: can

we reach consensus? Journal Criminal Law and Criminology 88 (1997) 1, 2–3. For a description of state

legislative responses to this increase in crime (which has abated significantly in recent years), see State responses

to serious and violent juvenile crime, Washington, DC: Office of Justice Programs, Office of Juvenile Justice and

Delinquency Prevention, United States Department of Justice (1996). See also Jeffrey Fagan and Franklin E.

Zimring (eds.). The changing borders of juvenile justice: transfer of adolescents to the criminal court. University

of Chicago Press (2000).23 Ralph A. Rossum, Reforming juvenile justice and improving juvenile character: the case for the justice

model, Pepperdine Law Review 23 (1996) 823.24 The United States Department of Justice estimated in 1997 that of the approximately 10 million adults

booked into United States jails in a given year, approximately 700,000 had a serious mental disorder, while 75%

also had a substance abuse disorder. Bureau of Justice Statistics, US Department of Justice, Prison and Jail Inmates

at Midyear 1997. See also Richard H. Lamb and Linda E. Weinberger, Persons with severe mental illness in jails

and prisons: a review, Psychiatric Services 49 (1998) 483.25 Randy Borum, Jail diversion strategies for misdemeanor offenders with mental illness: preliminary report,

Department of Mental Health Law and Policy, Louis de la Parte Florida Mental Health Institute, University of

South Florida (1999). Discussion has not been confined to the United States, see, e.g., Roy Light, Getting away

with it?—‘‘diversion’’ as an alternative to prosecution, New Law Journal 136 (1986) 62.


Europe,26 Australia,27 Canada,28 and the United States have created special jurisdiction

courts, with treatment rather than punishment of the offender a primary focus.

Drug courts have been the most popular of such courts. The first treatment-oriented drug

court in the United States was established in Dade County, FL in 1989, and as of January,

2000, drug courts, including juvenile drug courts, had been implemented in more than 440

United States jurisdictions and were being planned in another 279 jurisdictions.29 Drug courts

appear to have developed for three major reasons. These include the influx into the court

system of individuals charged with drug offenses as a result of the ‘‘War on Drugs’’ in the

United States in the 1980–1990s; a concomitant increase in the number of incarcerated

individuals in correctional facilities, particularly though not exclusively jails; and the

availability of federal funds for drug courts (though early courts were created primarily as

local initiatives without benefit of federal funds).30 Drug courts were designed as a strategy to

reduce recidivism through diversion into treatment of certain types of offenders; other goals

included reducing pressure on crowded court dockets (by assigning all of a certain type of

case to a designated judge) and reducing the number of people incarcerated for drug-related

offenses.

A typical drug court has a number of components, including31 judicial supervision of

community-based treatment, a designated judge for hearing drug court cases, identification

and referral to treatment of eligible defendants as soon as possible after arrest, regular status

hearings to monitor progress and compliance, the use of graduated sanctions and awards to

increase individual accountability, drug testing, specific treatment program requirements

monitored by a judicial officer, and case dismissal or a reduced sentence upon completion of

the program.

Advocates of drug courts have asserted that the use of treatment and punishment (labeled

by former United States Attorney General Janet Reno a ‘‘carrot and stick’’ approach32) has

made drug courts successful in reducing recidivism.33 At the same time, there are critics of

drug courts. One judge characterized them in the following manner:

The scandal of America’s drug courts is that we have rushed headlong into them—driven

by politics, judicial pop-psychopharmacology, fuzzy-headed notions about ‘restorative

justice’ and ‘therapeutic jurisprudence,’ and by the bureaucrats’ universal fear of being

26 See n. 6, op. cit.27 See n. 4, op. cit.28 See n. 5, op. cit.29 Steven Belenko, The challenges of integrating drug treatment into the criminal justice process, Albany Law

Review 63 (2000) 833, 835. See also Dembo and Belenko, this issue.30 John S. Goldkamp, The drug court response: issues and implications for justice change, Albany Law

Review 63 (2000) 923, 945–947.31 Belenko, op. cit. n. 29, p. 849.32 Heather Mactavish, Profile: Janet Reno’s approach to criminal justice, UCLA Women’s Law Journal 4

(1993) 113, 116.33 Lynne M. Brennan, Comment: drug courts: a new beginning for non-violent drug addicted offenders—an

end to cruel and unusual punishment, Hamline Law Review 22 (1998) 355, 380–381.


the last on the block to have the latest administrative gimmick. We have embraced the

drug court panacea without asking, let alone resolving, even the most basic of questions:

What is the purpose of drug courts? Do drug courts work? Are the costs of drug courts,

including costs in de-individualized justice, worth their benefits? Should the sentencing

philosophy of a single drug court judge or group of drug court judges be

institutionalized?34

As noted below, others have debated the role of judges and lawyers in treatment-oriented

courts such as drug courts. However, despite ongoing debate, and the hostility of some

commentators, drug courts continue to thrive.

Mental health courts have become the latest special-jurisdiction, treatment-oriented courts

to gain popularity. They resemble drug courts in some ways, but differ from them in others.

Like drug courts, they are designed to divert individuals into treatment. Also like many drug

courts, they are based explicitly on notions of therapeutic jurisprudence.35 David Wexler,

originator of the term, has defined therapeutic jurisprudence as an analytic framework that

examines ‘‘the extent to which substantive rules, legal procedures, and the roles of lawyers

and judges produce therapeutic or antitherapeutic consequences.’’36 Commentators have

increasingly urged that therapeutic jurisprudence is an appropriate foundation for a variety of

other special jurisdiction courts, for example, family37 and domestic violence courts.38

However, unlike drug courts, the mental health courts established to date do not all share

core features.39 Each mental health court does attempt to link defendants to mental health

services in the community as soon as possible after arrest and most though not all accept for

jurisdiction only nonviolent misdemeanors with a mental illness. However, the courts differ in

a number of ways, including whether dedicated community treatment services are available to

34 Morris B. Hoffman, Commentary: the drug court scandal, North Carolina Law Review 78 (2000) 1437,

1440.35 For example, Judge Ginger Lerner-Wren, who presides over the Broward County Florida Mental Health

Court, has written that ‘‘through the application of Therapeutic Jurisprudence, the Court has been able to establish

an effective and innovative method of utilizing the Court system in a positive, and in many cases, empowering

mechanism for individuals with severe mental disability.’’ Progress Report: July 1997–June 1998, The Nation’s

First Mental Health Court. 17th Judicial Circuit, Broward County, FL (1998). See also Peggy F. Hora, William G.

Schma, and John T. Rosenthal, Therapeutic jurisprudence and the drug treatment court movement:

revolutionizing the criminal justice system’s response to drug abuse and crime in America, Notre Dame Law

Review 74 (1999) 439, 440. (‘‘[We] propose to establish therapeutic jurisprudence as the [Drug Treatment Court]

movement’s jurisprudential foundation.’’36 David B. Wexler and Bruce J. Winick, Introduction, in Essays in therapeutic jurisprudence (David B.

Wexler and Bruce J. Winick, eds. 1992).37 Thomas E. Schacht, Prevention strategies to protect professionals and families involved in high-conflict

divorce, University of Arkansas Little Rock Law Review 22 (2000) 565. For a discussion of proposals to reform

the resolution of custody disputes in Canada, see Hugh F. Landerkin, Custody disputes in the provincial court of

Alberta: a new judicial resolution model, Alberta Law Review 35 (1997) 627.38 Bruce J. Winick, Applying the law therapeutically in domestic violence cases, University of Missouri

Kansas City Law Review 69 (2000) 33.39 Henry J. Steadman, Susan Davidson, Collie Brown, Mental health courts: their promise and unanswered

questions, Psychiatric Services 52 (2001) 457.


the court, whether a guilty plea is necessary prior to entry to the court, and whether

punishment should be used for noncompliance with treatment.40

At this point, there is little known about the actual operation of mental health courts,

though some results from evaluations are beginning to emerge.41 Despite the lack of

knowledge about the operation and impact of such courts, they continue to proliferate in

the United States, a development that may be hastened by the recent appropriation of federal

money by Congress to seed the development of such courts.42

3. Discussion

The development of treatment-oriented special jurisdiction courts is a very important one.

It has broad implications for the roles of judges and attorneys and by implication for the

manner in which the courts ‘‘do justice.’’ These courts rest on a fundamental redefinition of

the role of the judiciary. For example, one commentator43 has compared problem-solving and

treatment-oriented courts to traditional courts in the following manner: The former attempt to

avoid dispute rather than resolve it, look for therapeutic rather than legal outcomes, use

collaborative rather than adversarial processes, are people-oriented rather than case-oriented,

are interest or needs based rather than rights based, interpret and apply social science rather

than law, view the judge as a coach not arbiter, are forward rather than backward looking,

involve many rather than few participants and stakeholders, and are interdependent rather

than individualistic. Some judges have embraced this new role, while others have not.44

These changes in the aggregate represent a profound change in the role of judges and judging.

The role of attorneys in these courts is also altered, with attorneys advised to play an

explicitly therapeutic rather than adversarial role.45 This too is not without controversy, as

40 John S. Goldkamp and Cheryl Irons-Guynn, Emerging judicial strategies for the mentally ill in the criminal

caseload: mental health courts in Fort Lauderdale, Seattle, San Bernadino, and Anchorage (2000); Patricia A.

Griffin, Henry J. Steadman, and John Petrila (2002). The use of criminal charges and sanctions in mental health

courts. Psychiatric Services 53, 1285–1289.41 John Petrila, Norman G. Poythress, Annette McGaha, and Roger A. Boothroyd, Preliminary observations

from an evaluation of the Broward County mental health court, Winter 2001 Court Review 14 (2001); Norman G.

Poythress, John Petrila, Annette McGaha, and Roger Boothroyd, Perceived coercion and procedural justice in the

Broward mental health court, International Journal of Law and Psychiatry 25 (2002) 1. See Boothroyd et al.,

Trupin et al., and Dusmohamed et al., this issue.42 Congress in 2000 authorized grants to communities to establish up to 100 mental health courts nationally.

Publ. No. 106–515 (codified at 42 U.S.C. 3796ii et seq.). In November 2001, Congress appropriated 4 million

dollars for such grants.43 Jane Gilbert, Richard Grimm, and John Parnham, Applying therapeutic principles to a family-focused

juvenile justice model, Alabama Law Review 52 (2001) 1153, at pp. 1196–1197.44 Compare, for example, Deborah J. Chase and Peggy Fulton Hora, The implication of therapeutic

jurisprudence for judicial satisfaction, Court Review, Spring 2000, which advocates for a new judicial role based

on therapeutic jurisprudence with the views of Judge Hoffman, n. 34 op. cit.45 Judge Judith Kaye, Chief Judge on the New York Court of Appeals, writes that in treatment courts ‘‘the

lawyers also have new roles. The prosecution and defense. . . are members of a team with a common goal: getting

the defendant off drugs.’’ Lawyering for a New Age, Fordham Law Review 67 (1998) 1, 4.


some have embraced such a role,46 while others are concerned with the potential erosion of

client rights and role confusion, particularly for defense counsel.47 The role of counsel is

linked inextricably with the issue of informed consent and defendant competency, because

treatment courts typically require the waiver of rights (for example, the right to speedy trial)

in courts where disposition of the charge is postponed. Thus, whether the defendant is

competent and fully informed before agreeing to enter a treatment-oriented court becomes a

critical though in this context largely unexamined issue.

Another very important issue that warrants additional inquiry is the use of punishment and

coercion to achieve the treatment goals established by these courts. As noted earlier, the use of

punishment, for example, jail, is routine in drug courts, and the role of coercion in such settings

has been discussed.48 However, there has been much less discussion of the use and threat of

sanctions in mental health courts.49 Some of the apparent ambivalence about using punishment

in mental health court may reflect an emphasis, which has grown stronger in recent years, on

enabling people to obtain treatment for mental illness voluntarily.50 In addition, the complexity

of the role of coercion both conceptually and empirically in the treatment of mental illness has

only recently begun to be appreciated.51 It is clear that more research is needed into the effect

of coercion and the use of punishment in treatment-oriented courts.

46 See, e.g., Cait Clark, Problem-solving defenders in the community: expanding the conceptual and

institutional boundaries of providing counsel to the poor, Georgetown Journal of Legal Ethics 14 (2001) 401

(advocating ‘‘holistic’’ lawyering); Bruce Winick, Criminal law: redefining the role of the criminal defense lawyer

at plea bargaining and sentencing: a therapeutic approach, Psychology, Public Policy and Law 5 (1999) 1034.47 Richard C. Boldt, Rehabilitative punishment and the drug treatment court movement, Washington

University Law Quarterly 76 (1998) 1206. For an additional analysis of these issues, see Mae C. Quinn, Whose

team am i on anyway? Musings of a public defender about drug treatment court practice, New York University

Review of Law and Social Change 26 (2000–2001) 37. Whether therapeutic jurisprudence as a philosophy carries

with it the seeds for potential neglect of individual rights has been a matter of some debate. See, for example, John

Petrila, Paternalism and the unrealized promise of essays in therapeutic jurisprudence; David B. Wexler and

Bruce J. Winick, Patients, professionals and the path of therapeutic jurisprudence; a response to Petrila; Joel

Haycock, Speaking truth to power: rights, therapeutic jurisprudence, and massachusetts mental health law;

Michael L. Perlin, Keri K. Gould, Deborah A. Dorfman, Therapeutic jurisprudence and the civil rights of

institutionalized mentally disabled persons: hopeless oxymoron or path to redemption, all in David B. Wexler and

Bruce J. Winick (eds.), Law in a therapeutic key: developments in therapeutic jurisprudence (1996).48 See, e.g., Wayne Hall, The role of legal coercion in the treatment of offenders with alcohol and heroin

problems, The Australian and New Zealand Journal of Criminology 30 (1997) 103 for an overview.49 An excellent study into the use of the threat of sanctions in drug courts can be found at Sheila Royo

Maxwell, Sanction threats in court-ordered programs: examining their effects on offenders mandated into drug

treatment, Crime and Delinquency 46 (2000) 542.50 Howard H. Goldman, Vijay Ganju, Robert E. Drake, Paul Gorman, Michael Hogan, Pamela S. Hyde, and

Oscar Morgan, Policy implications for implementing evidence-based practices, Psychiatric Services 52 (2001)

1591. Goldman et al. write at p. 1594–1595 ‘‘occasionally treatment is provided under a court order, but in

general the goal is to have consumers receive services on a voluntary basis. . .the Surgeon General expressed the

belief and hope that evidence-based practices will reduce the need for coercion in mental health services.’’51 For an excellent review article, see John Monahan, Richard J. Bonnie, Paul S. Appelbaum, Pamela S. Hyde,

Henry J. Steadman, and Marvin S. Swartz, Mandated community treatment: beyond outpatient commitment,

Psychiatric Services 52 (2001) 1198.


Another area that warrants additional inquiry is the impact of such courts on the

surrounding community, and the impact of communities on the operation of such courts.

Drug courts, in particular, have tended to utilize treatment that is tied to or readily accessible

to the courts. In contrast, some mental health courts have been created without the creation of

specific resources for individuals referred for treatment by such courts. In such situations,

does this create incentives for arrest, since the criminal court may become the easiest way to

gain access to care? Does it create ‘‘queue-jumping’’ in which services for others are diluted

as they are mobilized for people entering through the criminal courts? These are important

questions particularly in an era of scarce treatment resources.

Finally, as the articles in this issue suggest, special jurisdiction courts are used in many

countries throughout the world. This suggests dissatisfaction with the manner in which

certain types of cases have been handled that goes beyond a single jurisdiction or country. It

also suggests continuing interest in the courts as a tool for rehabilitation, something that is

occasionally lost in the shift toward more punitive correctional policies. Yet, the introduction

of these courts has occurred in many instances without the benefit of much knowledge

regarding their operation or effect. Further research, both of specific jurisdictions but

preferably across jurisdictions, will help shed light on whether the trend toward special

jurisdiction courts has positive or negative effects, whether those effects are short- or long-

term, and whether such courts represent a real shift in ‘‘doing justice’’ or are simply a passing

trend.


an introduction to special jurisdiction courts

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