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

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

  1. Kaz Gurney says:

    Dear Michael. Having worked in the Magistrates’ Courts in Victoria, I share your angst at what I see to be a barrier in many of them between what happens during the Courts’ processes and what happens before and after them.

    CISP was a great innovation when it was introduced and has served the judiciary well for a decade or more. But I think we now know enough about offending behaviours to do even better.

    The small Community Legal Centre I manage in Shepparton has been running a Therapeutic Justice program at the Court for the last two years. Our lawyer is teamed with a case manager in a partnership arrangement with the local primary care health service. They begin working with clients who have both complex legal and complex social/health issues at the beginning of their appearances in Court. They assess the clients, look at all the issues underlying their offending, and begin the process of building their relationships with appropriate service providers in the community so they are “stabilised” by the time they are given an appropriate sentencing disposition. Magistrates now regularly make continued engagement with the team a condition of orders made.

    The service providers are part of our community and so there is a seamless link before, in-Court, and after between these agencies and the client. There is therefore less like
    likelihood of the client “straying” from the ordered path. We are still conducting date collection and analysis but all the indications point to it being successful…even spectacularly so. Some of our best client referrals now come from former clients who are sending their family and friends to see the team.

    According to the most recently released Crime Statistics for Victoria, the Statewide average breach rate is 10.7% whereas the breach rate in Shepparton is 4.9%. This against a background that has the offending rate in Shepparton close to 14,000 per 100,000 and the Statewide average not much more than 8,000. While credit for this massive reduction in re-offending must be shared with our dedicated Magistrates, Police and Corrections we certainly claim to have made a substantial, positive difference to the lives of our clients and corresponding improvement in the social structure of our community.

    Kaz Gurney

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    • mainstreamtj says:

      Great stuff Kaz. You are hitting on the importance of continuity of care. Therapeutic relationship is so important to recovery. You mentioned that you have the person engaged from the first court appearance (if on remand and then bailed I presume it is from that point but what if a person is on bail from police or summons do they get triaged/assessed for your program at the very first mention or from when they enter a plea? In terms of future reform for your system I wonder if your police are now seeing the benefits whether you could look at assessment referral st the point of arrest (maybe for repeat offenders with drug/alcohol issues to make it manageable)? Congrats to you and your team. if you ever want to write this up it would be great in the alternative law journal and/or a blog here! Take care, Pauline

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      • Kaz Gurney says:

        Thank you Pauline for your kind response.

        The TJ team will see clients appearing on summons if they meet the “complex legal and complex social/health issues” guidelines. Other lawyers, both VLA and private can and do refer clients, and the case manager works directly with those lawyers for the benefit of their clients. Yet others are referred by Prosecutors, Registry and Magistrates, as well as support agencies, families and friends. A couple have even been referred by a local Member of Parliament!

        We would love to have referrals from police immediately post-arrest but we need more resources and a shift in thinking by those out working the streets and managing the custody cells. Nevertheless, we have had a few successes in our negotiations with police regarding actions taken with highly intoxicated chronically addicted individuals, convincing them that the inconvenience of transporting and supervising admission for a medically supervised detox makes more sense than responding to a coronial inquest into a death in custody.

        The real success of this “Health-Justice Partnership with a difference” is grounded in the involvement of other community agencies whose services are brought to the table by our case manager and whose therapeutic work is presented in cogent terms to the Court by our dedicated lawyer. It takes the principles of a Court-focused CISP system and applies them to a client-focused therapeutic system seamlessly linking clients from Court to community.

        We remain hopeful that the new CISP moneys shortly being directed to Shepparton will broker an expansion of this highly effective program to all Courts in our Region and beyond.

        Liked by 1 person

  2. mainstreamtj says:

    Kaz a response from Michael Perlin because he was having an issue posting I have….

    Kaz, Thank you so much for these thoughtful replies to my blog post. Your Center (Centre) is doing such a terrific job; if only there were similar ones in every jurisdiction!
    In your reply to Pauline’s comment, you note, “we need more resources and a shift in thinking by those out working the streets and managing the custody cells.” I guess one of the questions that has lodged in my mind permanently is this — to what extent is “a shift in thinking” likely or even possible? In some recent pieces that I’ve done with my colleague Alison Lynch (a disability rights lawyer in NYC), we’ve looked at police attitudes, and we’ve found the evidence to be so disspiriting (these articles are all “in press”; I can post the SSRN cites if you would like). A significant # of police polled don’t believe that a person with a mental illness is ever capable of rational thinking; another significant # thought it was a “waste of time” to make referrals to mental health liaisons (many had no idea if there were mental health liaisons in their depts). So, what do we do? I wish I knew.
    I am so happy that you and your colleagues are doing what you are doing, and hope that others in other communities replicate in the coming years. Thank you for posting!
    All the best, Michael Perlin (signing in this morning from Saskatoon, Canada, where I will be speaking tomorrow about why lawyers need to follow their clients’ wishes, even if the client has a mental disability)

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  3. mainstreamtj says:

    Kaz and Michael
    I do feel that a “shift in attitude” can occur with operational police as they are at the frontline of interacting with people with addictions they often understand the futility of the arrest/rearrest cycle they just don’t know what to do. Local police in Dandenong took the initiative of setting up a treatment intervention at arrest stage that then continues into a court supervised program but local operational police work very closely with treatment providers on the ground before and between court hearings. It is for people who are recidivist drunk arrests and we have been getting some excellent outcomes. I can see how this might be expanded to a breaded cohort (maybe the criteria you have for your program targeting limited resources at more complex recidivist offenders. They are probably the people u are assisting once at court this might just get them into treatment at an earlier arrest stage. The Dandenong alcohol diversion program was done without additional resources just a reallocation of existing resources to what works rather than what wastes resources. Dandenong police would be happy to talk to your police.Read more here http://dandenong.starcommunity.com.au/journal/2016-11-04/police-health-campaign-awarded/
    Food for thought!
    Cheers P

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  4. Pauline, If I were smart enough to figure out how to change police attitudes, I would be so much more optimistic (globally). But there are subtly ways that things can change. If a policeman drops off a person at jail, the most time the process will take is an hour; if at a hospital, the least is 3 1/2 hrs. It becomes efficient for the police to over use jails and under use hospitals. Why is that?? This is something that could be addressed but there appears little interest in it other than in some academic articles…
    Best, Michael

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    • mainstreamtj says:

      Michael
      I think the types of programs that involve police and mental health professionals in multi disciplinary teams are promising. For those interested this is the evaluation of such a program in Victoria PACER (I must follow up and see what happened with this program and possible expansion )
      http://www.acilallen.com.au/cms_files/acgpacerevaluation2012.pdf
      A few key findings:
      PACER intervention provides more timely access to mental health assessment for the person in crisis than occurred in the comparator site, reducing the time to assessment from an average of approximately three hours to less than one hour.
      • On average, the police first responder unit is released more quickly when PACER is involved than in the comparator site. Under PACER, the first responder unit is released in about one third of the time, enabling them to meet other demands for emergency response in the community.

      Cheers
      Pauline

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