Guest blogger Nigel Stobbs teaches undergraduate and postgraduate courses on therapeutic courts ….

I often meet academics, lawyers, graduate research students and criminologists who are inspired by the idea of using TJ as a structure or method for a particular project, but who struggle to pin down what the TJ method ‘is’, or how to apply it.   Although I wouldn’t suggest that there is a single correct way to answer this question, I’d like offer my advice about one approach to designing a TJ research project.

The first thing to note is that if you are working in a field where a clearly identifiable theoretical perspective and a rigorous, analytical methodology are expected, TJ really can meet both those requirements.  Researchers can use a TJ approach as either the core of a qualitative or quantitative research design, or as a way to customise, contextualise or complement more traditional methods.

TJ is both a practical attempt to describe and improve processes that are already happening in courts and legal practice, and also a normative agenda, that is, an effort to prescribe what ought to happen.  Sometimes TJ is described as a lens, providing benchmarks or criteria against which a legal rule, legal actor or legal process can be measured to look for anti-therapeutic effects and consequences.

But don’t be fooled into thinking it can’t be used as a quite specific method for designing or reforming new laws or new legal practices.  Or, as we’ve seen with the problem solving courts, a set of procedural guidelines, protocols and techniques for making the justice system more effective in quite specific ways. TJ research comes up with conclusions and recommendations which are testable and which are tested to determine their validity.

David Wexler pointed out right at the beginning of the TJ journey that the law is ‘a social force that, like it or not, may produce therapeutic or anti-therapeutic consequences’.  Law operates like a kind of therapist – or more precisely, a therapeutic agent or tool.  He said: ‘The task of therapeutic jurisprudence is to identify—and ultimately to examine empirically, relationships between legal arrangements and therapeutic outcomes’.

So there’s the start of a basic method:

(1)  Specify a particular legal actor, legal rule or legal process that you are going to examine
(2)  Examine empirically, relationships between how that actor, rule or process operates in practice relative to some measureable consequences
(3). Identify those consequences which are potentially anti-therapeutic
Now that you have identified some consequences that seem in need of reform or modification, what do you do about them?  That’s where the interdisciplinary nature of TJ research comes in. Wexler says that the research task which TJ people undertake is a ‘cooperative and thoroughly interdisciplinary one potentially involving law, philosophy, criminal justice, public health, psychiatry, psychology and social work’.   If you do some reading about the origins and development of TJ you will find that it has always had a strong focus on applying and adapting knowledge from these other disciplines (especially the social and health sciences).  So do some research and find out how those from the other professions have responded to the sorts of negative emotional, psychological and other consequences that we generally call ‘anti-therapeutic’.

Can these interdisciplinary findings and strategies be adapted in the justice system?  Remember that TJ does not seek to trump existing legal rights and obligations or to marginalise due process.  Part of your method should involve an analysis of why legal ‘things’ are done in a particular way.  If a change would reduce anti-therapeutic consequences, but breach laws or due process then, reform may not be possible – but even that finding could be a useful research outcome. Outcome measures can also relate to more creative criteria than the just those things typically reported on when evaluating law and justice initiatives.  The scourge of drug addiction, for example, is a multiheaded beast with ancillary and flow-on consequences which are well documented and which can devastate families and communities. It’s worth building some flexibility into the method to identify and capture measures such as (in the case of drug related studies) improved family relationships, better mental health and resilience, developing community awareness and support and building trust in the justice system.

We can now add to our method:

(4)  Locate data, knowledge, findings or strategies from other disciplines that suggest solutions to identified anti-therapeutic consequences
(5)  Make explicit the regulatory context – by identifying the legal rights, obligations and due process ‘givens’ which inform the legal actor, legal rule or legal process that you are looking at

(6)  Suggest reforms based on (4) and test them against the criteria in (5)

This is just the sort of research method that has helped to shape the way the drug treatment courts work.   A very common finding of evaluations of drug court procedures, is that the strongest factor that determines the success of drug court is the interventionist style and conduct of the judge, which provides a stark contrast to the typically reserved and detached demeanour of the adversarial judge.  For a long time, it was assumed that an interventionist judicial role would be prohibited by law, or that a judge who got involved in the lives of those dealt with by a court would necessarily be breaching their rights and undermining due process.  But by applying a lot of knowledge from other disciplines and gaining the cooperation of lawyers and legal academics in reform, these concerns were addressed and overcome.

As another example – I was recently involved in a TJ related project, based on work with coroners in Australia and England, which tried to reconcile the duty of the coroner in suicide related investigations to come to objective conclusions, with the potential for a suicide finding to traumatise and confuse family members.

Previous research that indicated that families bereaved through a coronial death – which is often unexpected and violent – are not aided in their grief by coronial processes.  Most experienced coroners interviewed, were aware of the added distress caused by the forensic nature of suicide investigations and more likely to give expression to a family’s more intimate knowledge of a loved one and to resist making a suicide finding.  Such coroners have been heavily criticised, with critics pointing to the consequences for accurate suicide statistics and appropriate suicide prevention programs cited as cases in point. Our project suggested more nuanced classifications of deaths caused by the deceased were possible than the binary suicide/not suicide distinction that the legal coronial system often utilises – as a mechanism for resolving this tension. (Belinda Carpenter, Gordon Tait, Nigel Stobbs & Michael Barnes, ‘When coroners care too much: Therapeutic jurisprudence and suicide findings’. (2015) 24(3) Journal of Judicial Administration 172)

Some resources for designing and fine tuning a TJ research method:

David C. Yamada Therapeutic Jurisprudence and the Practice of Legal Scholarship (2010) (41) The University of Memphis Law Review 121

David B. Wexler ‘Reflections on the Scope of Therapeutic Jurisprudence’ (1995) 1(1) Psychology, Public Policy and Law 220.

David B. Wexler, ‘Moving Forward on Mainstreaming Therapeutic Jurisprudence: An Ongoing Process to Facilitate the Therapeutic Design and Application of the Law’ (2015). Essays on TJ in New Zealand.

Richard L Wiener and Bruce Winick., ‘A Testable Theory of Problem Solving Courts: Avoiding Past Empirical and Legal Failures’ (2010) 33 International Journal of Law and Psychiatry 417.  

Carrie J. Petrucci and Kathleen M. Quinlan, ‘Bridging the Research-Practice Gap: Concept Mapping as a Mixed-Methods Strategy in Practice-Based Research and Evaluation’ (2007) 34 Journal of Social Service Research 25.

Nigel Stobbs (Queensland, Australia) Nigel is a criminal defence barrister turned academic. He conducts applied research, and consults, in sentencing law and policy. He is particularly interested in comparative studies in therapeutic jurisprudence – working out how therapeutic innovations from one jurisdiction can be transferred into another. He is currently working on an international project through the Queensland University of Technology Crime and Justice Research Centre on ways in which criminal justice practitioners continue to work in therapeutic/restorative ways even where formal TJ/RJ programs have not been adopted or have been defunded. He teaches undergraduate and postgraduate courses on therapeutic courts and delivers continuing legal education training for lawyers on advanced sentencing advocacy and ethics.

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