6 therapeutic jurisprudence practices for judges and courts (TJ Court Craft Series #9)

In this blog we draw on an article by Paula O’Byrne where she explores some key TJ practices that can be used to improve the effectiveness of criminal courts… 

1. Legal actors should be aware they function as a therapeutic agent and apply an ethic of care. Judges should interact with offenders and conduct court proceedings in a manner that maximises therapeutic outcomes. Judges and lawyers should encourage and motivate offenders to confront their problems, engage with them in developing solutions, treat them with dignity and respect, and give them a ‘voice’ in proceedings. Interpersonal skills that engender trust and respect – such as active listening, conveying concern and giving positive encouragement – should be used where possible.
2.  Court processes should invite active participation between parties, allow for solutions-focused approaches to be applied and be responsive to change. They should also be structured to draw on the skills and resources of different agencies. The problem-solving court is an example of this approach.
3. The offender should play an active role in solving his or her ‘problem’. This means giving the offender a ‘voice’ in court proceedings, actively involving them in decision-making, and encouraging them to take responsibility for finding solutions to their problems, including their dysfunctional behaviour. King offers a range of judicial techniques to help offenders become this active agent.
4. Legal rules and procedures should enable the causative factors associated with the offending to be addressed. For example, drug abuse has a close correlation with criminal offending and mental illness. People affected by a mental disorder are exposed to a range of social, health and legal risk factors. TJ says that the courts should be equipped to respond to these issues in collaboration with relevant treatment agencies and community programs.
5. In order to facilitate rehabilitation and reduce recidivism, the law should promote behavioural change. One technique is the use of rewards and sanctions to encourage and motivate offenders to engage in behavioural change, complete treatment programs and comply with orders. Review procedures that enable the court to monitor and support an offender’s progress are another.  A third technique is the use of behavioural contracts in court programs to set specific behavioural goals.
6.  Procedural fairness is a common theme in TJ literature.  It ties in with the notion that TJ is about the law in action, not simply the written law, and that the manner in which decisions are made affects people just as much as what decisions are made. If an offender feels that he or she has been fairly and respectfully dealt with, they are more likely to accept the court’s authority and decision, even if the decision is not favourable.

Read Paula O’Byrne’s full paper that explores TJ and family violence offenders (as well as other great TJ articles) in the International Journal of Therapeutic Jurisprudence