Problem Solving Courts in Australia: The Application of Therapeutic Jurisprudence – Mostly

Guest blogger Michael Perlin, Professor Emeritus of Law, New York Law School and International Visiting Scholar RMIT School of Law reflects on his recent visit to Australia…

I am now back home in New Jersey after a remarkable trip to Australia.*  I am doing this blog post now to share some ideas I have about the impact of Therapeutic Jurisprudence (TJ) on the Australian judicial system, and some thoughts for the future.

While I was in Australia – I also presented six papers (at universities, to court staffs, to Legal Aid, and as one of the keynoters at the Non Adversarial Justice Conference in Sydney put on by the Australasian Institute on Judicial Administration — I spent portions of three days observing problem-solving courts, and spoke to, literally, dozens of magistrates, federal judges, and Supreme Court justices, as well as lawyers from the Victoria Legal Aid and other agencies that provided representation to indigent persons who appeared before magistrates’ courts.

My takeaway was this: all the parties (judges, defense counsel, prosecuting police officers, treatment team liaisons, court personnel) had incorporated TJ into their daily practices and applied it in every case I saw. I was so thrilled to see this.

However (and this is the reason the word “mostly” made it into the title of this blog), there were administrative and structural obstacles interposed that limited the ultimate impact of all this incredible TJ work, that inevitably diminished the real TJ takeaway on the litigants before these courts.

Let me explain.

I observed a mental health court and a Koori (aboriginal court) (both presided over by Magistrate Lance Martin) as well as the Neighborhood Justice Center (presided over by Magistrate David Fanning).

In all instances, I also spoke to court personnel, lawyers and, in the Koori case, the Aboriginal elders who worked with Magistrate Martin in his disposition of the cases.

In each case, I thought the presiding magistrate used TJ principles in ways that authentically “looked at law as it actually impacts people’s lives” and assessed law’s influence on emotional life and psychological well-being (1). In reviewing my notes, by way of examples: the Magistrates took seriously the progress reports notes before them, worked collaboratively with defendants and counsel so as to encourage further engagement with community counselors to maximize the possibilities of recovery and to seek solutions to problems that might inhibit such recovery (in one example from the mental health court, looking for a way to deal with a defendant’s social anxiety so that he might be able to take public transportation that would allow him to attend counseling sessions).

The contributions of the Koori elders – certainly bracing at times – added to the TJ-friendly quality of the hearings (“Tomorrow is about redemption,” said one elder to a defendant in that court; he added to a different defendant, ”I hope this is a healing journey on the way to a new beginning”).

Many of the defendants – in all courts – clearly lived disorganized lives (the hallmark of so many defendants in problem-solving courts around the world), and everyone in the judicial system “got” that: that the misdemeanor (in some cases, felonies) was only one piece (in some cases, a very small piece) of the many issues being faced.

The participants in the court process all worked collaboratively so as to, the late Bruce Winick’s words, “value psychological health, [by striving] to avoid imposing anti-therapeutic consequences whenever possible, and when consistent with other values served by law, [attempting] to bring about healing and wellness”. (2)

So why did I say “mostly”?

I did this because I found at least three structural roadblocks that, to me, in some cases, significantly diminished the ultimate potential ameliorative impact of TJ on the defendants in question and the entire legal process. I will address these since I am hoping that, by sharing these, readers in Australia will be able to develop strategies to deal with them.

The first emerged in the most interesting case that I saw (and the one that took the longest amount of time in court). The defendant – in Koori court – had been charged with nine counts of burglary, larceny and malicious damage (including breaking into a church and stealing from a donation box), all of which stemmed from his need for money to “feed” his heroin habit. The defendant’s story was a not-unfamiliar one to me (I was a Public Defender in Trenton, NJ, before I became a law professor many years ago). He was orphaned at 12, dropped out of school at 14, became addicted to heroin at 16, and was in a major biking accident at 18, causing lasting traumatic brain injury. He was 26, and at the time of the hearing, had not been out of jail or prison for more than 6 months since he turned 18. It was clear to all – the judge, defense counsel, the prosecutor, the court liaison – that a neuropsychological assessment was needed to determine the extent of his brain injury and to allow the creation of the best possible treatment strategy. But (and this is where “mostly” comes in), according to the judge – and this was confirmed by at least six other judges whom I spoke with in my time in Melbourne – he could order a psychological assessment or a psychiatric assessment , but not a neuropsychological assessment. Apparently, the latter are more expensive and there are fewer practitioners on whom to draw. Right. But that is not a valid reason, in my mind, to say that the judiciary cannot order such an evaluation.

In this case, the Legal Aid lawyer told the court that Legal Aid could pay for the examination, and it was thus ordered. But that is not a palliative solution. If TJ is to be in place, as a way of recognizing that “as a therapeutic agent, the law that can have therapeutic or anti-therapeutic consequences” (3), then the clearly anti-therapeutic effects of an administrative order (or ruling, or practice) that denies indigent defendants the right to the only meaningful assessment of their condition means that TJ is not, in the long run, in place in this court. Let me make this clear. None of this should be placed on the judge’s shoulders. Rather, it is a systemic failure that, to me, is incomprehensible. If Legal Aid did not have the discretionary funds to pay for this evaluation, then this defendant would have spent time in prison until his release date after which, inevitably, he would find himself quickly rearrested on new charges, starting the downward spiral again.

Second, in the same case and in at least one other, it was clear that the best TJ-based solution would be for the defendant to begin a mental health and/or drug counseling program while in jail on remand awaiting case disposition. And there is such a program – the CISP (Court Integrated Services Program) whose aim it is to provide short term assistance before sentencing for accused with health and social needs, work on the causes of offending through individualized case management, provide priority access to treatment and community support services, and reduce the likelihood of re-offending. BUT — and this is the kicker – to be eligible the accused must be “on summons, bail or remand pending a bail hearing” (4). The defendants in the cases I saw were on remand after their bail hearing. So they were thus ineligible. Why??? If these defendants were languishing in custody pending case disposition, what better time to start meaningful, rehabilitative, and TJ-friendly counseling program than while they were so incarcerated? This program restriction makes no conceptual sense and limits the ultimate TJ-ness of the entire court proceeding.

The third was very different and troubling in an entirely different way. One Legal Aid lawyer told one of the Magistrates: “My client was picked up on March 28 at 4 pm. It is now March 30 at 2:10 pm. I found out he was in custody, and would not be brought to court, just five minutes ago.” Another defendant, in a different court, had been picked up on a new charge a few days prior to the date set for the hearing, and “due to an administrative mix-up” was not brought to court. A third was not brought to court because of “administrative error.” Multiple defendants appeared only via video link because, I was told, of “issues” involving the availability of correctional personnel to bring these defendants to court. I spent thirteen years as a “real lawyer” before I became a professor, and this pattern was one I was familiar with from my own days in practice. I acknowledge that there are great pressures on correctional systems to effectuate jail – courthouse transfers. But there is no excuse for Legal Aid not being informed that a client – due in court – was picked up on remand. There is no excuse for ongoing “administrative errors” (no one seemed the least bit surprised that these had happened). I know nothing about administrative staffing in the local correctional departments, but I do know that the number of times that I saw these “issues” recur in my three days of observations led me to conclude that this was “business as usual” in a way that helped inhibit the authentic application of TJ to the cases at hand.

So, this is the dilemma. The judges, the lawyers, the court personnel, the treatment teams, everyone I connected with in my days in court exemplified the best of TJ practices. No question. Yet, these three stumbling blocks clearly inhibited the ultimate TJ “takeaway” of the proceedings in question.

I think it is essential that these be addressed by Court Services Victoria and Corrections Victoria so that TJ may flourish.

An irony: I spent another day at the Marlborough Unit for Prisoners with Intellectual Disabilities at Port Phillip Prison, and I was blown away (in a totally positive sense). Here, on the grounds of a maximum security prison, Michelle Enbom, the Disability Unit Coordinator, ran a facility-within-a-facility for prisoners with a range of intellectual disabilities in a way that perfectly reflected TJ values. Proof positive that this can be done in a prison setting. I observed this before I did any of the court observations, so I was not able to ask Michelle how some of the issues I raised above might be remediated. I hope to do this in the future.

One of the central principles of TJ is a commitment to dignity, a value that must permeate the justice system (5). With my colleague Naomi Weinstein, I have recently argued that “attorneys must embrace the principles and tenets of therapeutic jurisprudence as a means of best ensuring the dignity of their clients and of maximizing the likelihood that voice, validation and voluntariness will be enhanced” (6).

Again, the magistrates, the lawyers, the court personnel that I saw all embraced these principles and did the most they could to “ensur[e] the dignity of their clients.”

It is truly a shame that the other issues that I have raised here diminish that dignity. I wish I had a solution.

Join the discussion on how TJ can drive reform…leave a comment below …

Notes:

*While there, I was a Distinguished Visiting Scholar at RMIT Law School. My thanks to Professor Penny Weller, for making that happen and for all her kindness. My thanks also to Magistrate Pauline Spencer for her generosity and her support for my entire time in Australia. I am eternally grateful to both.

(1) See e.g., Bruce J. Winick, Foreword: Therapeutic Jurisprudence Perspectives on Dealing with Victims of Crime, 33 Nova L. Rev. 535, 535 (2009); David B. Wexler, Practicing Therapeutic Jurisprudence: Psychological Soft Spots and Strategies, in Daniel P. Stolle, David B. Wexler & Bruce J. Winick, Practicing Therapeutic Jurisprudence: Law as a Helping Profession 45 (2006))

(2) Bruce Winick, A Therapeutic Jurisprudence Model for Civil Commitment, in Involuntary Detention and Therapeutic Jurisprudence: International Perspective on Civil Commitment 23, 26 (Kate Diesfeld & Ian Freckelton eds., 2003))

(3) Michael L. Perlin, “His Brain Has Been Mismanaged with Great Skill”: How Will Jurors Respond to Neuroimaging Testimony in Insanity Defense Cases?, 42 Akron L. Rev. 885, 912 (2009)

(4) https://www.magistratescourt.vic.gov.au/court-support-services/court-integrated-services-program-cisp

(5) Bruce J. Winick, Civil Commitment: A Therapeutic Jurisprudence Model161 (2005)

(6) Michael L. Perlin & Naomi Weinstein, “Said I, `But You Have No Choice’”: Why a Lawyer Must Ethically Honor a Client’s Decision About Mental Health Treatment Even if It Is Not What S/he Would Have Chosen,— Cardozo Public L., Pol’y & Ethics J. —(2017) (forthcoming), accessible at https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2828288, manuscript at 69-70