Problem-Solving Courts:TJ and Procedural Fairness

Hon. Peggy Fulton HoraSuperior Court of California (Ret.)

The law is…

• … a healing profession

Problem-Solving Courts

• …focus on the underlying medical/social issues and chronic behaviors of court users who have recurring contacts with the justice system

• …apply promising practices and evidence-based interventions from the behavioral sciences to effectuate change

• …seek innovative solutions to complex social issues (substance abuse, homelessness, mental health, violence)

Problem-Solving Courts

• …focus on the underlying medical/social problems and chronic behaviors of court users who have recurring contacts with the justice system

• …apply promising practices from the behavioral sciences to effectuate change

• …seek innovative solutions to complex social issues (addictions, homelessness, mental health, violence)

P-S Principles and Methods

1. Reduce recidivism in criminal cases2. Save incarceration and other costs of social

services, e.g., foster care3. Have great public support4. High participant satisfaction5. High judicial satisfaction

Collaborative Judges

• Judges believe they can and should play a role in the problem-solving process

• Outcomes matter--court is not just based on a process and precedent

Adapted from Judge Judith S. Kaye, Chief Judge, New York

Collaborative Courts

• Recognize the therapeutic potential of the court’s coercive powers

• Finds “Judicial Leverage” is an appropriate tool

Collaborative Courts

• Recognize the therapeutic potential of the court’s coercive powers

• Finds “Judicial Leverage” is an appropriate tool• Address complex social issues• Understand that collaboration assists with

continuum of care

Drug Treatment Courts

• DTCs emphasize alcohol and drug treatment services. The two goals of these programs are to reduce recidivism of drug-related offenses and to create options within the criminal justice system that tailor effective and appropriate responses for offenders with drug problems.

Leadership

• The role of a leader is to empower others, help others fix problems and serve others.

Brady & Woodward (2007)

• As the leader of the team, the judge is fully committed to the drug court program, its mission and goals.

Leadership, cont.

• Hold team-building meetings and focus on program structure with the team

• Expect all team members to participate in staffing.

Who are Leaders?

• Plenty to do without a process that will be hard and time-consuming

• Advantages distant, costs immediate• Leaders are those “who can stand back and see the

payoffs, who are willing to take risks, and who are willing to use their personal credibility and stock with their peers to get this effort off the ground and keep it going.”

McGarry, Peggy and Becki Ney, “Getting it Right: Collaborative Problem Solving for Criminal Justice,” U.S. Dept. of Justice, Nat’l Institute of Corrections (June 2006) http://nicic.org/Downloads/PDF/Library/019834.pdf

Judicial Supervision

Ongoing judicial supervision increases the likelihood that the participant will remain in treatment

Regular status hearings are used to monitor participant performance

High Performance Judges Know

“Effective trial courts are responsive to emergent public issues such as drug abuse…A trial court that moves deliberately in response to emergent issues is a stabilizing force in society and acts consistently with its role of maintaining the rule of law”

Bureau of Justice Assistance’s Trial Court Performance Standards, 1997

What does an effective judge know?

• What separates drug court judges from traditional judges is training in addiction, understanding how to motivate behavior change, and simple empathy.

• William G. Meyer & A. William Ritter, Drug Courts Work, 14 FED. SENT’G REP. 179, 183-184 (2002).

Comprehensive Law Movement

Seeks to maximize emotional, psychological and relational wellbeing of those involved with legal matters

Focuses beyond strict legal rights, responsibilities, duties, obligations and entitlements

Daicoff, Id.

THERAPEUTIC JURISPRUDENCE

TJ

• “…[T]he most prolific vector [of the Comprehensive Law Movement], at least in academic and judicial circles.

• “It has rapidly spread to all areas of the law and has been enthusiastically adopted by American judges in the form of ‘problem-solving courts’.”

Daicoff, Susan, “Law as a Healing Profession: The ‘Comprehensive Law Movement’,” 6 Pepperdine Dispute Resolution Law Journal 1 (2006)

Therapeutic Jurisprudence…

“proposes the exploration of ways in which, consistent with principles of justice, the knowledge, theories, and insights of the mental health and related disciplines can help shape the law.”

Source: Wexler, DB and BJ Winick, eds. Law in a Therapeutic Key, Durham, NC; Carolina Academic Press, 1996

www.therapeuticjurisprudence.org

TJ’s Overlapping areas of Inquiry

1. Role of law in producing psychological dysfunction

2. Therapeutic aspects of the law

3. Therapeutic aspects of the legal system

4. Therapeutic aspects of judicial and legal roles

Wexler, Introducing Therapeutic Compliance Through the Criminal Law, 14 Law & Psychol. Rev. 42 (1990)

The task of TJ

• Identify and ultimately examine empirically relationships between legal arrangements and therapeutic outcomes

• Law reform agenda: Minimize anti-therapeutic consequences and facilitate achievement of therapeutic ones

Drogin, Eric “Jurisprudent Therapy and Competency,” 28 Law & Psych. R. 41 (2004)

Can we enhance the likelihood of desired outcomes & compliance with judicial orders by applying what we know about behavior to the way we do business in court?

Can we enhance the likelihood of desired outcomes & compliance with judicial orders by applying what we know about behavior to the way we do business in court?

TJ’s Question

Jurisprudent Therapy

• Ensures people are helped in ways that obey, complement, and further the goals of the law

• TJ is designed to ensure that the law does things to help people

• It also results in more compliance with judicial orders

Drogin, Id.

• Can we reduce the anti-therapeutic consequences

• Enhance the therapeutic ones

• Without subordinating due process and other justice values?

Slobogin, Christopher, “Therapeutic Jurisprudence: Five Dilemmas to Ponder,” 1 Psychology Public Policy and the Law 193 (1995)

“Trumping”

• Legal rights such as due process and equal protection are never “trumped” by therapeutic concerns even though the court’s action may be anti-therapeutic

PROCEDURAL FAIRNESS/PROCEDURAL JUSTICE

Procedural Fairness/Justice

• Posits that the manner in which justice is done is just as important and the outcome

• “…bridges the gap that exists between familiarity and unfamiliarity and the differences between each person….”

• www.Proceduralfairness.org

• Burke, Kevin and Steve Leban, “Procedural Fairness: A Key Ingredient in Public Satisfaction,” Court Review American Judges Association (2007)

Procedural Fairness

• Voice: the ability to participate in the case by expressing their viewpoint;

• Neutrality: consistently applied legal principles, unbiased decision makers, and a “transparency” about how decisions are made;

Procedural Fairness, cont.

• Respectful treatment: individuals are treated with dignity and their rights are obviously protected;

• Trustworthy authorities: authorities are benevolent, caring, and sincerely trying to help the litigants—this trust is garnered by listening to individuals and by explaining or justifying decisions that address the litigants’ needs.

Tom Tyler, “Why People Obey the Law” 22 (2006)

Fairness is Key

• People will accept an unfavorable ruling if they feel the process is fair.

• People who win but who do not feel they were treated fairly are unhappy with the procedure

Why do people accept court decisions?

Tom Tyler, Procedural Fairness, COSCA 2011

Willingness to accept decisions based upon reason for being in court.

R-E-S-P-E-C-T

• Proactive trouble shooting• Judge directly address progress• Open courtroom• All observed consequences• Genuine, caring, consistent, and firmCarrie J. Petrucci, "Respect as a Component in the Judge-Defendant Interaction in a Specialized Domestic Violence Court that UtilizesTherapeutic Jurisprudence.“ CRIMINAL LAW BULLETIN38:2 (2002)

• Active listening• Rogerian approach

(warmth, empathy, and genuineness)

• Shared respect

A New PerspectiveThe court system as

• an interdisciplinary• problem-solving• community institution

Dr. Alvan Barach, quoted by Bill Moyers in Healing and the Mind, 1993

Twenty years of P-S Courts 1989-2009• “We’re moving out of

adolescence into a point of maturity.”

• Dan Becker, Utah’s state court administrator

NADCP Key Component #7 and United Nations Office on Drugs and Crime Key Component #7: Ongoing judicial interaction with each drug court participant is essential

Tribal Healing-to-Wellness Courts Key Component#7: Ongoing judicial interaction with each participant

and judicial involvement in team staffing is essential

Judges matterTherapeutic jurisprudence posits:• Does what a Judge says, and how he or she says it,

impact legal outcomes?• Such as compliance, sentence completion,

recidivismProcedural justice suggests:• Defendants’ perceived fairness of the Judge can

make a difference in whether they complete their sentences, and ultimately, whether they reoffend

EMT Associates, Inc. 06-12-2008 41

Judicial Communication Scale

• People feeling like they have been treated fairly was the strongest predictor in court attitudes

• Ethnicity of the observer (but not ethnic match to judge & not for all judges)

• Professional discipline of the observer (law vs. social work but not for all judges)

• Need for complex thinking (2 out of 4 judges)• Authoritarianism (2 out of 4 judges)

Petrucci, Carrie, Ph.D., “Measuring Judicial Communication: A Therapeutic Jurisprudence Perspective” 2008

Judge is most important factor

• 80% of participants say they wouldn't have stayed in drug court if they did not appear before a judge

Drug Court Clearinghouse, American U.

• Interaction and delivery of response has most impact

Drug Court Participant:

• “It’s a learning experience for me. You just learn what to do. When you see somebody doin’ right and they get patted on the back, you think, ‘I want to be like that next time I come.’ Or when you see someone get the cuffs slapped on them, you thinking like, ‘Oh, I ain’t going to do that. I don’t want to be that person’.”

San Bernardino Drug Court participant focus group

Judicial Interaction

• One of the most important factors for DTC• Judges’ interpersonal skills and ability to resolve legal

problems expeditiously and provide ready access to services

• A single DTC judge increases compliance over multiple judges presiding

• Drug Courts: The Second Decade NIJ Special Report OJP, USDOJ (June 2006)

Incentives & Sanctions

• After input from the whole team, the judge should decide on incentives, sanctions and treatment responses.

• The judge must stay abreast of research on motivational interviewing and behavioral change literature.

• The judge delivers a coordinated response to participants in the courtroom.

Incentives and Sanctions

• Timely• Consistent• Certain• Appropriate to hold litigant accountable, move

litigant toward desired outcome, protect public

Why sanctions?

• Purpose of sanctions is to keep them engaged in treatment

• Use sanctions to promote sustained change

5 Steps to Deliver the response

1. Explain the decision and the factors considered by the team

2. Review severity of the participant’s substance dependence

3. Note the behavior being responded to4. How the behavior is important to their recovery5. Why the particular sanction and magnitude were

selected

National Drug Court Institute, Incentives and Sanctions: Rethinking Court Responses to Client Behavior

Practice with a partner

Danny has been in DTC for 9 weeks. He once was clean for 2 weeks. In staffing, you find out he had a positive test this week. Your court requires a participant disclose use before testing. Danny didn’t. How do you deliver the consequence to Danny?

What do you say to Danny?

• Is Danny’s abstinence a proximal or distal goal?

• Is there a different response to the “dirty” test and the lying?

• What sanctions are available and how do you choose?

There are two very different types of Behavior Changes

• Imposed Behavior Change• Making you do something that you do not want to

do (work, prison, losses, divorce, sanctions)• The primary reason for that change is extrinsic not

intrinsic• Chosen Behavior Change

• Intentional and intrinsically motivated• Taking ownership of the change and integrating it

into your lifestyle• DiClemente, “Reducing Recidivism and Promoting Sustained Change, “ 2011

How do we…

• Develop a system that gives offenders access to help to engage the intentional process

• Do not simply rely on extrinsic motivation to create sustained change

• Parental Accountability Court GA

RESTORATIVE JUSTICE

Adversarial System Restorative Justice·Crime is defined as a violation of rules, and a harm to the state

·Crime is seen as a harm done to victims and communities

·Victim is inhibited from speaking about his/her real losses and needs

·Victim is central to the process of defining the harm and how it might be repaired

·Offender, victim and community remain passive and have little responsibility for a resolution

·Offender, victim and community are active and participate in the resolution resulting from the restorative forum

Adversarial System Restorative Justice

·Offender is blamed, stigmatized and punished

·Offender is reintegrated into the community, dignity is preserved, and the community’s long term safety is protected

·Repentance and forgiveness are rarely considered

·Repentance and forgiveness are encouraged

·Assumes win-loss outcome

·Makes possible win-win outcome

Adversarial System Restorative Justice

·Community’s role is limited

·Community is actively involved in holding offenders accountable, supporting victims, and ensuring opportunities for offenders to make amends

·Restitution is rare ·Restitution is normal·Controlled and operated by the state and professionals who seem remote

·Overseen by the state, but usually driven by communities

California Community Justice Project:Building Restorative Justice Principles in the Community

• Enhance awareness/understanding of community justice principles/practices

• Facilitate information sharing between existing community justice programs and start-up programs

• Facilitate the development of local practices consistent with community justice principles

www.courtinfo.ca.gov/programs/ccjp

Judicial Attitude

A judge must believe that people can change with support and like interaction with participants

Source: Applying Drug Court Concepts in the Juvenile and Family CourtEnvironments American University, State Justice Institute, June 1998

Judge as Change Agent• Visible to & respected by multiple

systems/stakeholders

• Able to function as a “boundary spanner”

• Strong communicator

• Skilled facilitator

• Consensus builder

• Good political “nose”

“I am not a social worker”

Jane Addams, founder of Hull House, the consummate “social worker.”

Arguments Against• “[Working

therapeutically] cheapens the judicial office, placing the judge at the level of a ringmaster in a judicial circus.”

• Bean, Philip, “Drug Courts, the Judge, and the Rehabilitative Ideal,” DRUG COURTS in Theory and in Practice, James L. Nolan, Jr., Ed., Aldine de Gruyter (2002)

Dr. Bean now• “It has been said we

should expect only one good idea in criminal justice per decade; that being so, drug courts make up for two.”

• Bean, Philip, “Drugs and crime,” Willian Publishing, UK (2002)

• “[Being a problem-solving judge] has made me look at everybody on the other side of the bench—both defendants and lawyers—not as adversaries but as people who bring their own life experiences to the table.”

• Hon. Rosalyn Richter, an acting Supreme Court justice and a former judge of the Midtown Community Court

Working Therapeutically

• It’s good for the judge• In a series of surveys comparing judges working

therapeutically and those working traditionally, 100% of DTC judges reported being positively affected by their assignment

• Hora, Peggy Fulton and Deborah Chase, “The Best Seat in the House: The Court Assignment and Judicial Satisfaction,” 47:2 Family Court Review 209-238 March, 2009.

Working Therapeutically

• Effectuates the court’s orders

• If conditions of probation contemplate change in the defendant, we should enhance the likelihood of achieving that change

Correlation of Questions

• Three answers most highly correlated to the feeling that the “judicial assignment was beneficial”

1. Litigants were grateful for the help they received2. Judges witnessed litigant improvement3. Judges felt hope for litigant improvement

Hora, Peggy Fulton and Deborah J. Chase, J.D., Ph.D, "Judicial Satisfaction When Judging in a Therapeutic Key," Contemporary Issues in Law 7:I (2003/2004).

Correlation

• The most common predictor of positive emotional effect was the perception by the judicial officer that “litigants are grateful for the help they are given by the court.”

• Chase & Hora, “The Implications of Therapeutic Jurisprudence for Judicial Satisfaction.” 37:1 Court Review (Spring 2000)

Judicial Satisfaction is Nonsense

• “Ought we to be thinking more about the impact of the team approach on notions of justice, rather than concern ourselves with the well-being of judges, an occupational group quite capable of protecting its own interests?”

Needn’t change YOUR style

Back to the Future

1. Drug treatment courts will go to scale and serve every individual who needs court-supervised treatment in the justice system

2. Current promising practices of other problem-solving courts will continue to evolve and be evaluated for efficacy

3. Evidence-based sentencing will be employed by every judge in every court and mandatory sentencing will become obsolete

4. Drug courts will be peer accredited and employ “industry” standards

5. Wide acceptance of problem-solving courts in the government and in the community will continue to be the norm

Hora, Peggy Fulton Hon., “THROUGH A GLASS GAVEL: PREDICTING THE FUTURE OF DRUG TREATMENT COURTS,” Nat’l Ctr for State Courts (In Press)

New publication

• Download a pdf version at: http://www.ndci.org/publications/more-publications/-drug-court-judicial-benchbook

New website

• National Drug Court Resource Center

• www.NDCRC.org

System level approach

• The California courts are already acting on this idea with a Procedural fairness initiative.• Based upon their own independent research

confirming these ideas.• Responding to diversity, increases in pro se

representation, public distrust of the courts.• Every experience with the courts – litigant,

juror, etc. should build legitimacy.• This should occur at all stages: arresting

officers; jail staff; court help-desk; bailiff; judge.