Dr. Moy • The numbers of mentally ill and substance abusing defendants is increasing every year. Approximately 25% of those in jails and prisons in America have a current diagnosable mental health problem and need treatment while 56% in state prison, 45% in Federal prison and 64% in local jails have had mental health problems in the past. – Approximately 60% of all prisoners have abused alcohol and other drugs and for most of them, their drug habits got them into trouble with the law. – Those detainees and prisoners with mental illness and substance abuse problems are even higher, with 74% in state prison and 75% in local jails. – – – State prisoners with a mental health problem were twice as likely to have been homeless in the year before their arrest (13% as compared to 6%) and jail inmates who had a current mental health problem (24%) were three times as likely as jail inmates without (8%) to report being physically or sexually abused in the past. Female inmates had higher rates of mental health problems than male inmates (73% of females as compared to 55% of males in State prisons and 75% of females as compared to 63% of male inmates in local jails). • • • Emphasizes treatment over punishment Nonadversarial Offers treatment instead of or prior to incarceration – – especially if a non-violent defendant either pled guilty or no-contest. Usually out-patient treatment program preadjudication or even as a substitute for adjudication in many cases. • • • • • • Are voluntary- people who volunteer for treatment are more likely to be successful Defendants may be referred to the Mental Health Court from a variety of different sources. – In-custody defendants are often referred by jail psychiatric staff who have screened for mental health issues. Defendants may also be referred for consideration by police, attorneys, family members, or probation officers. Specialized court docket, which employs a problem-solving approach to court processing in lieu of more traditional court procedures for certain defendants with mental illnesses; Judicially supervised, community-based treatment plans for each defendant participating in the court, which a team of court staff and mental health professionals design and implement; Regular status hearings at which treatment plans and other conditions are periodically reviewed for appropriateness, incentives are offered to reward adherence to court conditions, and sanctions are imposed on participants who do not adhere to the conditions of participation; Criteria defining a participant’s completion of the program. • Entry Criteria are different for all courts but generally look something like: – Has a pending felony and District Attorney, Defendant and Defense Attorney all consent to the case being in Plattsburgh Mental Health Court AND is – Diagnosed as Severely & Persistently Mentally Ill , and that illness is related to the pending offense AND is – Motivated to comply with medication and Mental Health Court treatment and behavioral requirements, – AND the Team determines that the client needs the structure, support and accountability of Mental Health Court to be compliant    Broward County was the first community in the United States to have a mental health court Courts exist across the country now, including misdemeanors and more recently felonies  Felonies in mental health court have been controversial; defendants can have serious and violent charges and be waived into felony mental health court for a therapeutic intervention instead of a punitive approach.  Proponents of this idea state that recidivism will decrease because these defendants will finally get the treatment that they need so they will not commit these crimes again.  Other say that they deserved to be punished despite the presence of a serious mental illness. It appears though closer supervision, these individuals are able to get services, such as therapy, substance abuse intervention, housing, and education, that they would otherwise not have access to. • • • • • • Are voluntary The first type of therapeutic courts to be established in the U.S. Currently both misdemeanor and felony court s Defendants are offered treatment rather than jail time for drug offenses. These courts are patient with relapses and continue to hold the case provided the defendant goes back into treatment. Abstinence in an Alcoholics Anonymous type of model is the typical treatment model that the courts usually recommend. – – Some courts try different and innovative treatments, such as the Miami/Dade court where acupuncture is a choice. Others, like Broward County have tried a controversial controlled drinking approach where abstinence is not required as long as the individual carefully controls the amount and use of the substance. This program works best with those who are not heavy substance abusers although some who like having total control over their own lives may do well with such an approach. • Typically, the defendant is arrested and brought before the Magistrate for first appearance within 24 hours. – – • • In some cases, the Marchman Act in Florida, is activated, which provides for involuntary hospitalization of the defendant. If the arrest includes more than possession of alcohol or other drugs, then it is rare that drug court referral will be made. – • Can be deferred by many different people such as family members, probation officers, lawyers, or police officers If the defense attorney (in Broward County all defendants are represented by the Public Defenders office for first appearance) or prosecutor suggests drug court and the defendant agrees to volunteer, then he or she can be sent directly there by the Magistrate on duty. Usually that appearance is sometime that day or shortly afterwards. This is especially true if there is any violence involved in the charge or if selling of the drugs is involved. If the person is still drunk or high on drugs, they are sent to a detoxification center. Sometimes the detox is done in the jail’s medical center if medical intervention is available. Other times the individual is sent to a hospital or special facility and then returned to the jail where they may then be transferred into drug court.    Careful supervision, including frequent drug tests Regular status hearing to monitor progress Team approach • Arrest the perpetrator for domestic violence if the law enforcement officer has ‘probable cause’ to make that arrest. • • This means that the law enforcement officer believes that domestic violence did occur and that the person arrested was the perpetrator. No longer does a victim have to sign a complaint which, of course, makes it less dangerous for her but also prevents her from being able to ‘drop the charges’ which was so common in domestic violence cases prior to the new ‘pro-arrest’ laws. • • Perpetrator is placed in detention until next scheduled domestic violence court session. • Research has shown that the wait in jail is a helpful deterrent for some perpetrators, particularly those who have never had contact with the criminal justice system previously. Once before the judge, the perpetrator has the option of pleading guilty or no-contest (which is treated as a guilty plea) and agreeing to go into a special ‘offender-specific treatment program. • The domestic violence treatment program is cognitivebehavioral with an emphasis on changing attitudes and behaviors towards women, especially their specific victim. Often the treatment program is offered by the local battered woman’s shelter but in another location so that the perpetrators and victims are not forced to see each other, either intentionally or accidentally. • The court monitors the defendant’s progress in the treatment program through the use of special probation officers who have direct contact with the counselors who run the treatment program. • The research suggests that approximately 25% of the batterers who attend a treatment program (and some research suggests that less than 10% of all batterers ever get to attend the program) will stop their physical and psychological abuse of the victim, 50% will stop their physical abuse but continue their psychological abuse, and 25% continue to physically and psychologically abuse the victim even while attending the treatment program. • There are no data on the cessation of sexual abuse unless the offender is also sent to a special sex offenders program, which is rare in domestic violence cases. • • • • No confidentiality nor does the defendant have ‘privilege’ which is accorded to others who seek mental health treatment. • This means that the treatment provider must communicate information about the treatment to the court, usually on a regular basis. • Most important is attendance at the program since it is still difficult to measure whether or not the actual program is successful in changing attitudes, values, thoughts, feelings, and behavior other than re-offenses. The treatment provider may not be well trained in other issues besides domestic violence or drug abuse. • Unlike psychologists and other doctoral level mental health professionals who are trained in the broad spectrum of human behavior, both abnormal and normal, these providers who are not well paid, are trained in the specific program to be administered. • If the individual is unique in any way, the program may not be tailored to fit, perhaps making it inappropriate for that particular defendant. The treatment program, which is often a psychoeducational model, may not be able to deal with any mental illness or other problem that the defendant demonstrates and thus, is insufficient to stop all violent behavior. There is a lot of support for these domestic violence offender specific treatment programs, especially from victims who believe that the batterer may well stop his violent behavior once he is in a special treatment program. Fordham Urban Law Journal Volume 30, Issue 3 2002 Article 4 Therapeutic Jurisprudence and Problem Solving Courts Bruce J. Winick∗ ∗ University of Miami School of Law, bwinick@law.miami.edu Copyright c 2002 by the authors. Fordham Urban Law Journal is produced by The Berkeley Electronic Press (bepress). http://ir.lawnet.fordham.edu/ulj Therapeutic Jurisprudence and Problem Solving Courts Bruce J. Winick Abstract This article offers a number of suggestions concerning how judges should act in problem solving court contexts to spark the motivation of the individual to achieve rehabilitation and increase compliance with treatment. The proposals are derived from psychological literature in other contexts but further analysis and empirical research is needed. The article finds that therapeutic jurisprudence can contribute to the functioning of problem solving courts which can refine therapeutic jurisprudence approaches. KEYWORDS: therapeutic jurisprudence, problem-solving courts, problem solving courts THERAPEUTIC JURISPRUDENCE AND PROBLEM SOLVING COURTS Bruce J. Winick* 1. PROBLEM SOLVING COURTS: A TRANSFORMATION IN THE JUDICIAL ROLE In the past dozen or so years, a remarkable transformation has occurred in the role of the courts.' Courts traditionally have functioned as governmental mechanisms of dispute resolution, resolving disputes between private parties concerning property, contracts, and tort damages, or between the government and an individual concerning allegations of criminal wrongdoing or regulatory violations. In these cases, courts typically have functioned as neutral arbiters, resolving issues of historical facts or supervising juries engaged in the adjudicatory process. Recently, a range of new kinds of problems, many of which are social and psychological in nature, have appeared before the courts. These cases require the courts to not only resolve disputed issues of fact, but also to attempt to solve a variety of human problems that are responsible for bringing the case to court. Traditional courts limit their attention to the narrow dispute in controversy. These newer courts, however, attempt to understand and address the underlying problem that is responsible for the immediate dispute, and to help the individuals before the court to effectively deal with the problem in ways that will prevent recurring court involvement. The new courts, increasingly known as problem solving courts,2 are specialized tribunals established to deal with specific problems, often involving individuals who need social, mental health, or substance abuse treatment services. These courts also include criminal cases involving individuals with drug or alcoholism problems, * Professor of Law, University of Miami School of Law. Comments or questions for the Author should be addressed to bwinick@aw.miami.edu. 1. Leonore M. J. Simon, Proactive Judges: Solving Problems and Transforming Communities, in THE HANDBOOK OF PSYCHOLOGY IN LEGAL CONTEXTS (David Carson & Ray Bull eds., forthcoming) (manuscript at 4-7, on file with author). 2. CONFERENCE OF CHIEF JUSTICES & CONFERENCE OF STATE COURT ADM'RS, CCJ RESOLUTION 22 & COSCA RESOLUTION 4: IN SUPPORT OF PROBLEM-SOLVING COURTS (2000) [hereinafter CCJ RESOLUTION 22 & COSCA RESOLUTION 4], at http:/ /cosca.ncsc.dni.us/Resolutions/resolutionproblemsolvingcts.html (last visited Mar. 15, 2002). 1055 1056 FORDHAM URBAN LAW JOURNAL [Vol. XXX mental health problems, or problems of family and domestic violence. The juvenile court is the forerunner of these specialized courts; it was started in Chicago in 1899 as an attempt to provide a rehabilitative approach to the problem of juvenile delinquency, rather than the punitive approach of the adult criminal court. The modern antecedents of this movement are the drug treatment courts, founded in Miami in 1989. 4 The drug treatment court was a response to the recognition that processing nonviolent drug possession charges in the criminal courts and then sentencing the offender to prison did not succeed in changing the offender's addictive behavior.' Criminal court dockets had become swollen with these drug cases, and the essentially retributivist intervention of the criminal court and prison seemed to do little to avoid repetition of the underlying problem.6 The result was a "revolving door effect in which [drug offenders typically] resumed their drug-abusing behavior after [being] released from prison." 7 Instead of relying on the traditional criminal justice approach, the drug treatment court emphasized the offender's rehabilitation, and placed the judge as a member of the 3. See In re Gault, 387 U.S. 1, 14-15 (1967) (recapitulating the development of the differences between adult and juvenile justice); Janet Gilbert et al., Applying Therapeutic Principles to a Family-Focused Juvenile Justice Model (Delinquency), 52 ALA. L. REV. 1153, 1159 (2001) (supplying a brief historical background of the Illinois Juvenile Court Act of July 1, 1899, which established the first juvenile court); Julian W. Mack, The Juvenile Court,23 HARV. L. REV. 104, 107 (1909) (describing the establishment of the first juvenile court in Chicago in 1899). 4. John S. Goldkamp, The Origin of the Treatment Court in Miami, in THE EARLY DRUG COURTS: CASE STUDIES IN JUDICIAL INTERVENTION 19, 23 (W. Clinton Terry ed., 1999); Peggy F. Hora, A Dozen Years of Drug Treatment Courts: Uncovering Our Theoretical Foundation and the Construction of a Mainstream Paradigm,37 SUBSTANCE USE & MISUSE 1469, 1483 (2002); Bruce J. Winick & David B. Wexler, Therapeutic Jurisprudence and Drug Treatment Courts: A Symbiotic Relationship, in PRINCIPLES OF ADDICTION MEDICINE (Allan W. Graham & Terry K. Schultz eds., 3d ed. forthcoming) (manuscript at 2, 6-7, on file with authors) (discussing the relationship between therapeutic jurisprudence and specialized problem solving courts, such as drug treatment courts); see Peggy F. Hora et al., Therapeutic Jurisprudenceand The Drug Treatment Court Movement: Revolutionizing the Criminal Justice System's Response to Drug Abuse and Crime in America, 74 NOTRE DAME L. REV. 439, 453-54 (1999) (describing drug treatment courts as "judicially initiated treatment solutions for a certain class of drug offenders."); Pamela L. Simmons, Solving the Nation's Drug Problem: Drug Courts Signal a Move Toward Therapeutic Jurisprudence, 35 GONZ. L. REV. 237, 258 (1.999/2000) (attributing nationwide success of drug courts to therapeutic jurisprudence). 5. See Winick & Wexler, supra note 4 (manuscript at 2). 6. See Goldkamp, supra note 4, at 20-24; see also Winick & Wexler, supra note 4 (manuscript at 2) (discussing the ineffectiveness of criminal courts in permanently changing drug offenders). 7. Winick & Wexler, supra note 4 (manuscript at 2). 2003] THERAPEUTIC JURISPRUDENCE 1057 treatment team.8 Offenders accepting diversion to the drug treatment court, or pleading guilty and agreeing to participate in the drug treatment court as a condition of probation, agreed to several conditions; to remain drug-free, "to participate in a prescribed course of drug treatment, to submit to periodic drug testing in order to monitor their compliance [with the treatment plan], and to report [periodically] to court for judicial supervision of their progress." 9 These court's success in helping many addicts to end their addiction and to avoid re-involvement with the criminal court led to a tremendous growth in the number of drug courts nationally and internationally, with the result that, as of December 2000, there were 697 such courts in America, and many more in the planning stage.' 0 Indeed, there now are juvenile drug treatment courts, which specialize in juveniles with drug abuse problems, and dependency drug treatment courts, that deal with families with drug problems that are charged with child abuse or neglect." Other specialized treatment courts or problem solving courts, as they are now known, include domestic violence courts, 12 which attempt to protect the victims of domestic violence, to motivate perpetrators of domestic violence to attend batterer's intervention programs, and to monitor compliance with court orders and treat- 8. Id. (manuscript at 3). 9. Id. 10. CAROLINE S. COOPER, U.S. DEP'T OF JUSTICE, 2000 DRUG COURT SURVEY REPORT: PROGRAM OPERATIONS, SERVICES AND PARTICIPANT PERSPECTIVES EXECUTIVE SUMMARY [DRAFT] 3 (2001), available at http://www.american.edu/aca- demic.depts/spa/justice/publications/execsum.pdf (last visited Mar. 15, 2003). As of November 2001 there were 502 Adult Drug Courts, 191 Juvenile Drug Courts, 37 Family Drug Courts, and 39 Tribal Drug Courts. Id. 11. Barbara A. Babb & Judith D. Moran, Substance Abuse, Families, and Unified Family Courts: The Creation of a Caring Justice System, 3 J.HEALTH CARE L. & POL'Y 1, 18 (1999) (describing the creation of the Family Division of the Circuit Court for Baltimore City, Maryland); Amy K. Brown, Drug Courts Help Keep Families Together, F.B. NEWS, Sept. 15, 2001, at 1, available at http://www.flabar.org/ (last visited Mar. 15, 2003). 12. See, e.g., Randal B. Fritzler & Leonore M. J. Simon, The Development of a Specialized Domestic Violence Court in Vancouver, Washington Utilizing Innovative Judicial Paradigms, 69 UMKC L. REV. 139, 139 (2000); Amy Karan et al., Domestic Violence Courts: What Are They and How Should We Manage Them?, JuV. & FAM. CT. J., Spring 1999, at 75, 75-82; Bruce J. Winick, Applying the Law Therapeutically in Domestic Violence Cases, 69 UMKC L. REV. 33, 36 (2000) [hereinafter Winick, Domestic Violence]. 1058 FORDHAM URBAN LAW JOURNAL [Vol. XXX ment progress.' 3 More than two hundred domestic violence courts now exist.' n Reentry courts are another form of problems solving courts. These courts were designed to assist offenders that are released from prison into a form of judicially-supervised parole, to effect a successful integration into the community. 5 A recently proposed application of the reentry court model deals with sex offenders and attempts to manage the risk of their reoffending through close supervision and monitoring through the use of polygraph examinations. 16 Another example is the dependency court, a branch of family court that deals with issues of child abuse and neglect. 7 This is a civil court that adjudicates whether child abuse or neglect has occurred, and when it has, it attempts to provide services designed to avoid its repetition.' 8 When such services appear fruitless, the dependency court works to terminate parental rights and arrange fos9 ter care for the child.' Teen court, sometimes known as youth court, is another problem solving court." This court deals with cases involving juveniles charged with minor offenses. 2 ' In addition, it allows other juveniles who have been through the teen court process, and who 13. Winick, Domestic Violence, supra note 12, at 36-45. 14. See Karan et al., supra note 12, at 75 (finding that in "a 1998 survey over 200 courts reported having some specialized processing practice for domestic violence cases."); Winick, Domestic Violence, supra note 12, at 39. 15. John Q. LaFond & Bruce J. Winick, Sex Offender Reentry Courts: A Cost Effective Proposal for Managing Sex Offender Risk in the Community, in SEXUAL AGGRESSION: UNDERSTANDING AND MANAGEMENT (Robert Prentky et al. eds., forthcoming 2003) (manuscript at 26-28, on file with author); Joan Petersilia, U.S. Dep't of Justice, When Prisoners Return to Communities: Political, Economic, and Social Consequences, SENTENCING & CORRECTIONS: ISSUES FOR THE 21ST CENTURY, Nov. 2000, at 1, 5, available at http://www.ncjrs.org/pdffilesl/nij/l84253.pdf (last visited Mar. 15, 2003); Terry Saunders, Staying Home: Effective Reintegration Strategies for Parolees,41 JUDGES' J., Winter 2002, at 34, 35; Jeremy Travis, U.S. Dep't of Justice, But They All Come Back: Rethinking PrisonerReentry, SENTENCING & CORRECTIONS: ISSUES FOR THE 21ST CENTURY, May 2000, at 1, 8, available at http:// www.ncjrs.org/pdffilesl/nij/181413.pdf (last visited Mar. 15, 2003). 16. LaFond & Winick, supra note 15 (manuscript at 27-28). 17. Brown, supra note 11, at 1. 18. Id. 19. Id. 20. See, e.g., Jeffrey A. Butts & Janeen Buck, The Sudden Popularity of Teen Courts, 41 JUDGES' J., Winter 2002, at 29, 29; Allison R. Shiff & David B. Wexler, Teen Court.: A Therapeutic JurisprudencePerspective, in LAW IN A THERAPEUTIC KEY: DEVELOPMENTS IN THERAPEUTIC JURISPRUDENCE 287, 287-98 (David B. Wexler & Bruce J. Winick eds., 1996). 21. Shiff & Wexler, supra note 20, at 287. 2003] THERAPEUTIC JURISPRUDENCE 1.059 have received special training, to play the role of prosecutor, defense attorney, or member of the jury.22 This special process provides the juveniles charged with minor offenses with the ability to see their behavior from the victims' or society's perspective and to receive an inoculation of empathy training.23 One of the most recent types of problem solving courts to emerge is the mental health court,24 started in 1997 in Broward County, Florida.2 5 The mental health court is a misdemeanor criminal court designed to deal with people arrested for minor offenses 26 whose major problem is mental illness rather than criminality. This is a revolving door category of patients who are periodically committed to mental hospitals where they are treated with psychotropic medication. 7 Due to the use of medication, they experience sufficient improvement, which allows hospitals to discharge them, but, when they are back in the community, they fail to take their medication. 28 As a result, they frequently decompensate, sometimes committing minor offenses that result in their arrest.29 Mental health courts seek to divert them from the criminal justice system and to persuade them to voluntarily accept treatment while in the community.30 In addition, they link them with treatment re22. Id. at 289-95. 23. Id. at 288. 24. JOHN S. GOLDKAMP & CHERYL IRONS-GUYNN, U.S. DEP'T OF JUSTICE, EMERGING JUDICIAL STRATEGIES FOR THE MENTALLY ILl IN THE CRIMINAL CASELOAD: MENTAL HEALTH COURTS IN FT. LAUDERDALE, SEAITILE, SAN BERNARDINO, AND ANCHORAGE 9 (2000), available at http://www.ncjrs.org/pdffilesl/bja/ 182504.pdf (last visited Mar. 15, 2003); Randal B. Fritzler, How One Misdemeanor Mental Health Court Incorporates Therapeutic Jurisprudence, Preventive Law, and Restorative Justice, in MANAGEMENT AND ADMINISTRATION OF CORRECTIONAL HEALTH CARE: POLICY, PRACTICE, ADMINISTRATION 14-1 to 14-22 (Jacqueline Moore ed., 2003); Arthur J. Lurigio et al., Therapeutic Jurisprudence in Action: Specialized Courts for the Mentally Ill, 84 JUDICATURE 184, 184 (2000); Bruce J. Winick, Outpatient Commitment: A Therapeutic Jurisprudence Analysis, 9 PSYCHOL. PUB. POL'Y & L. (forthcoming 2003) (manuscript at 39, on file with author) [hereinafter Winick, Outpatient Commitment]. 25. John Petrila et al., Preliminary Observations from an Evaluation of the Broward County Mental Health Court, 37 CT. REV. 14, 15-16 (2001). 26. Id. at 16. 27. Winick, Outpatient Commitment, supra note 24 (manuscript at 4, 14); see GOLDKAMP & IRONS-GUYNN, supra note 24, at vii (discussing jail overcrowding and the increased number of persons with mental illness and with co-occurring mental illness and substance abuse in the criminal justice system); Petrila et al., supra note 25, at25 (discussing how mentally ill patients are frequently being arrested). 28. Winick, Outpatient Commitment, supra note 24 (manuscript at 4, 14). 29. Id. (manuscript at 14). 30. GOLDKAMP & IRONS-GUYNN, supra note 24, at 31, 89; Petrila et al., supra note 25, at 14-15. 1060 FORDHAM URBAN LAW JOURNAL [Vol. XXX sources, and provide social service support and judicial monitoring to ensure treatment compliance." All of these courts grew out of the recognition that traditional judicial approaches have failed, at least in the areas of substance abuse, domestic violence, certain kinds of criminality, child abuse and neglect, and mental illness. These are all recycling problems, the reoccurrence of which traditional interventions did not succeed in bringing to a halt. The traditional judicial model addressed the symptoms, but not the underlying problem. The result was that the problem reemerged, constantly necessitating repeated judicial intervention. All these areas involved specialized problems that judges of courts of general jurisdiction lacked expertise in. Moreover, they involved treatment or social service needs that traditional courts lacked the tools to deal with. In response to these failures, courts decided that they needed new judicial approaches. These new approaches involve a collaborative, interdisciplinary approach to problem solving where the judge plays a leading role. Not only is the judge a leading actor in the therapeutic drama, but also the courtroom itself becomes a stage for the acting out of many crucial scenes. On this stage, the judge also assumes the role of director, coordinating the roles of many of the actors, providing a needed motivation for how they will play their parts, and inspiring them to play them well. The new problem solving courts are all characterized by active judicial involvement, and the explicit use of judicial authority to motivate individuals to accept needed services and to monitor their compliance and progress. They are concerned not merely with processing and resolving the court case, but in achieving a variety of tangible outcomes associated with avoiding reoccurrence of the problem. Problem solving courts generate the need for new kinds of information not typically collected by courts, and, in the process, have significantly improved the quality and quantity of information needed to understand the problem and deal more effectively with 32 it. They play an educative role in raising community conscious- 31. GOLDKAMP & IRONS-GUYNN, supra note 24, at 10, 31. 32. See, e.g., LaFond & Winick, supra note 15 (manuscript at 8-9) (discussing the use of risk assessment instruments and polygraph examinations to gather information about released sex offenders in order to increase the effectiveness of court supervision and monitoring); Winick, Domestic Violence, supra note 12, at 55 (discussing the use of risk assessment instruments by domestic violence courts to gather information concerning a batterer's risk of re-offending); Winick & Wexler, supra note 4 (manuscript at 2-5) (noting drug treatment court's ongoing and constant intervention into defendant's rehabilitation). 2003] THERAPEUTIC JURISPRUDENCE 1061. ness about the problem in question, its causes, and the resources that courts need to resolve it. 33 In addition, they become advocates for the populations they deal with and for the increased allocation of community resources needed to resolve their problems. 34 Finally, they work closely with community agencies and treatment in the process, monitor and improve their providers, and, 35 effectiveness. Problem solving courts represent a significant new direction for the judiciary. These judges seek to actively and holistically resolve both the judicial case and the problem that produced it. 36 They extend help to people in need by connecting them to community resources, motivating them through creative uses of the court's authority to accept needed services and treatment, and monitoring their progress in ways that help to ensure their success. 37 By targeting recurring problems that seem to be the product of behavioral, psychological, or psychiatric difficulties or disorders, and intervening to prevent their reoccurrence, these courts can be seen as applying a public health approach to social and behavioral problems that cause serious individual suffering and deterioration in the quality of community life. Not only have these techniques emerged in the specialized problem solving courts described above, but also judges in general courts have begun to apply the problem solving approaches derived from these courts.38 33. See, e.g., Hora et al., supra note 4, at 462-68; Karan et al., supra note 12, at 75; Winick, Domestic Violence, supra note 12, at 37; Winick, Outpatient Commitment, supra note 24 (manuscript at 12-13). 34. See, e.g., Hora et al., supra note 4, at 453; Winick, Domestic Violence, supra note 12, at 39-40; Winick, Outpatient Commitment, supra note 24 (manuscript at 12). 35. Michael C. Dorf & Charles F. Sabel, Drug Treatment Courts and Emergent Experimentalist Government, 53 VAND. L. REV. 831, 833-34 (2000). 36. See id. at 832 (discussing how drug treatment courts were created in response to the excessive amount of cocaine and crack offenses, and how their intentions are to rehabilitate these offenders instead of sending them to jail). 37. Id. at 843-50. 38. See, e.g., Barbara A. Babb, Fashioning an Interdisciplinary Framework for Court Reform in Family Law: A Blueprint to Construct a Unified Family Court, 71 S. CAL. L. REV. 469, 522-23 (1998); Brown, supra note 11, at 1; Pamela Casey & David B. Rottman, TherapeuticJurisprudencein the Courts, 18 BEHAV. SCi. & L. 445, 454-55 (2000); Gilbert et al., supra note 3, at 1175-77; William Schma, Judging for the New Millennium, 37 CT. REV. 4, 4 (2000); David B. Wexler, Robes and Rehabilitation:How Judges Can Help Offenders Make Good, 38 CT. REV. 18, 18-19 (2001). 1062 FORDHAM URBAN LAW JOURNAL II. [Vol.XXX THERAPEUTIC JURISPRUDENCE AS A THEORETICAL FOUNDATION FOR PROBLEM SOLVING COURTS The problem solving courts' revolution has been largely atheoretical. It grew out of experimental approaches used in drug treatment courts to facilitate the substance abuse treatment process, which, because of their success, were transplanted into other judicial arenas.39 These programs appear to be successful, although the empirical research on their efficacy remains preliminary and often methodologically flawed.4" Why these programs seem to work, however, has remained largely unexamined. Therapeutic jurisprudence can be seen as a theoretical grounding for this developing judicial movement. We can understand the problem solving courts' revolution by situating it within the scholarly and law reform approach known as therapeutic jurisprudence.4' Therapeutic jurisprudence began in the late 1980s as an interdisciplinary scholarly approach in the area of mental health law.4 2 It criticized various aspects of mental health law for producing antitherapeutic consequences for the people that the law was 43 designed to help. Legal rules and the way they are applied are social forces that produce inevitable, and sometimes negative, consequences for the 39. See supra notes 4-11 and accompanying text. 40. See STEVEN BELENKO, THE NAT'L CTR. ON ADDICTION & SUBSTANCE ABUSE AT COLUMBIA UNIV., RESEARCH ON DRUG COURTS: A CRITICAL REVIEW 2001 Up- DATE 26-33 (2001), available at http://www.casacolumbia.org/usr-doc/researchondrug.pdf (last visited Mar. 15, 2003). Compare Hora et al., supra note 4, at 449-50, with Morris Hoffman, The Drug Court Scandal, 78 N.C. L. REV. 1437,1489-90 (2000). 41. See generally DAVID B. WEXLER & BRUCE J. WINICK, ESSAYS IN THERAPEUTIC JURISI'RUDENCE 17-18 (1991); BRUCE J. WINICK, THERAPEUTIC JURISPRUDENCE APPLIEI: ESSAYS ON MENTAL HEALTII LAW 3-8 (1997); David B. Wexler, Therapeutic Jurisprudence and Changing Conceptions of Legal Scholarship [hereinafter Wexler, Changing Conceptions[, in LAw IN A THERAPEUTIC KEY: DEVELOPMENTS IN THERAPEUTIC JURISPRUDENCE, supra note 20, at 597, 597-610; Bruce J. Winick, The Jurisprudence of Therapeutic Jurisprudence, 3 PSYCHOL. PUB. POL'Y & L. 184, 184 (1997) [hereinafter Winick, The Jurisprudence]. 42. DAVID B. WEXLER, THERAPEUTIC JURISPRUDENCE: THE LAW AS A THERAPEUTIC AGENI 3-4 (1990); WEXLER & WINICK, supra note 41, at 6. 43. See, e.g., Bruce J. Winick, Competency to Consent to Voluntary Hospitalization: A Therapeutic Jurisprudence Analysis of Zinermon v. Burch, 14 INT'L J.L. & PSYCHIATRY 169, 172 (1991) [hereinafter Winick, Competency to Consent] (criticizing the United States Supreme Court's broad dicta in Zinermon v. Burch, 494 U.S. 113 (1990), that voluntary admission to a mental hospital should always be preceded by an inquiry into the individual's competence to consent to voluntary hospitalization); Bruce J. Winick, Reforming Incompetency to Stand Trial and Plead Guilty: A Restated Proposal and a Response to Professor Bonnie, 85 J. CRIM. L. & CRIMINOLOGY 571, 582-85 (1995) [hereinafter Winick, Reforming Incompetencyl (criticizing incompetency to stand trial doctrine and practice). 2003] THERAPEUTIC JURISPRUDENCE 1063 psychological well-being of those affected. Therapeutic jurisprudence's basic insight was that scholars should study those consequences and reshape and redesign law in order to accomplish two goals 4 4-too minimize antitherapeutic effects, and when it is consistent with other legal goals, to increase law's therapeutic potential.45 Thus, therapeutic jurisprudence is an interdisciplinary approach to legal scholarship that has a law reform agenda. Although it started in the area of mental health law, therapeutic jurisprudence soon spread to other areas of legal analysis, and has emerged as a mental health approach to law generally. "6 Therapeutic jurisprudence is not only concerned with measuring the therapeutic impact of legal rules and procedures, but also of the way they are applied by various legal actors-judges, lawyers, police officers, and expert witnesses testifying in court, among others. 4 1 Whether they know it or not, these legal actors are therapeutic agents, affecting the mental health and psychological wellbeing of the people they encounter in the legal setting. For example, how lawyers deal with their clients in the law office and the courtroom can have a significant impact on a client's emotional well-being, and therapeutic jurisprudence has spawned a growing literature concerning how attorneys should act in this regard.48 44. See Bruce Winick, The Jurisprudenceof Therapeutic Jurisprudence,in LAW IN supra note 20, at 645, 647-52. 45. Id. 46. See David B. Wexler, Justice, Mental Health, and TherapeuticJurisprudence,in A THERAPEUTIC KEY: DEVELOPMENTS IN THERAPEUTIC JURISPRUDENCE, LAW IN A THERAPEUTIC KEY: DEVELOPMENTS IN THERAPEUTIC JURISPRUDENCE, supra note 20, at 713, 713-21; Winick, The Jurisprudence,supra note 41, at 184. For an up-to-date bibliography of therapeutic jurisprudence work, see the Therapeutic Jurisprudence website, at http://www.therapeuticjurisprudence.org (last visited Mar. 15, 2003). 47. See Winick, Domestic Violence, supra note 12, at 91 (proposing a more therapeutic application of the law in domestic violence cases); Winick, Outpatient Commitment, supra note 24 (manuscript at 31-48) (discussing how judges and lawyers can play their role more therapeutically in conducting civil commitment hearings, conditional release hearings, and in mental health court); Winick, The Jurisprudence,supra note 41, at 201 (describing the increasing body of therapeutic jurisprudence work ranging across a large spectrum of legal issues); Bruce J. Winick, Therapeutic Jurisprudence and the Civil Commitment Hearing, 10 J. CONTEMP. LEGAL ISSUES 37, 52-60 (1999) [hereinafter Winick, Civil Commitment Hearing] (proposing how judges, lawyers, and expert witnesses can apply the law more therapeutically in civil commitment cases). 48. See, e.g., PRACTICING THERAPEUTIC JURISPRUDENCE: LAW AS A HELPING PROFESSION (Dennis P. Stolle et al. eds., 2000) (anthology of essays applying therapeutic jurisprudence approach to lawyering); Symposium, Therapeutic Jurisprudence and Preventive Law: Transforming Legal Practice and Education, 5 PSYCHOL. PUB. POL'Y & L. 793, 793-1210 (Bruce J. Winick et al. eds., 1999) (containing a symposium 1064 FORDHAM URBAN LAW JOURNAL [Vol. XXX In a similar way, therapeutic jurisprudence has much to offer judges concerning how they treat the people appearing before them and courts concerning how they should be structured and administered to maximize their therapeutic potential. Therapeutic jurisprudence uses insights from psychology and the behavioral sciences to critique legal and judicial practices, and to suggest how they can be reshaped to increase their therapeutic potential and avoid the risk of psychological harm. Therapeutic jurisprudence is one of the major "vectors" of a growing movement in the law towards a common goal of a more comprehensive, humane, and psychologically optimal way of handling legal matters.4 9 Problem solving courts are also one of these "vectors," and thus, share many common aims with therapeutic jurisprudence." Thus, one may see problem solving courts as related to therapeutic jurisprudence, but they are not identical with the concept. Problem solving courts often use principles of therapeutic jurisprudence to enhance their functioning. Indeed, the Conference of Chief Justices and the Conference of State Court Administrators, following a joint task force analysis, recently adopted a resolution approving the growing movement in the direction of problem solving courts, and their use of principles of therapeutic jurisprudence in performing their functions. 5 These principles include "integration of treatment services with judicial case processing, ongoing judicial intervention, close monitoring of and immediate response to behavior, multidisciplinary involvement, and collaboration with community-based and governmental organizations. "52 Although problem solving courts developed separately from therapeutic jurisprudence, their development occurred at the same time, and they share similar aims. Drug treatment courts, domestic violence courts, and mental health courts, for example, can be seen as taking a therapeutic jurisprudence approach to the processing of of articles applying the therapeutic jurisprudence/preventive law model to lawyering in various contexts). 49. See Susan Daicoff, The Role of TherapeuticJurisprudencewithin the Comprehensive Law Movement, in PRACTICING THERAPEUTIC JURISPRUDENCE: LAW AS A HELPING PROFESSION, supra note 48, at 465. 50. See Casey & Rottman, supra note 38, at 454 (stating that "therapeutic jurisprudence principles are consistent with court performance goals."); David B. Rottman & Pamela Casey, Therapeutic Jurisprudence and the Emergence of Problem Solving Courts, NAT'L INST. JUST. J., Summer 1999, at 12-19; Simon, supra note 1 (manuscript at 2-7); Winick & Wexler, supra note 4 (manuscript at 1). 51. CCJ RESOLUTION 22 & COSCA RESOLUTION 4, supra note 2. 52. Id. 2003] THERAPEUTIC JURISPRUDENCE 1065 cases, inasmuch as their goal is the rehabilitation of the offender and their use of the legal process, in particular, the role of the judge, to accomplish this goal. 3 All of these courts seek to deal with the offender's underlying problem, and emphasize its resolution through the provision of treatment and rehabilitative services where the judge is an important member of the treatment team.54 Judges in these specialized courts receive special training in the nature and treatment of drug addiction,55 domestic violence,56 and mental illness, 57 and themselves function as therapeutic agents through their supervision and monitoring of the offender's treatment progress. Unlike traditional judges functioning in traditional courts, judges in problem solving courts consciously view themselves as therapeutic agents, and, therefore, one can see them as playing a therapeutic jurisprudence function in their dealings with the individuals who appear before them. Moreover, principles of therapeutic jurisprudence can help problem solving court judges play this function well. Therapeutic jurisprudence has already produced a large body of interdisciplinary scholarship analyzing principles of psychology and the behavioral sciences, and probing the ways in which they can be used in legal contexts to improve mental health and emotional well-being.5 A growing body of therapeutic jurisprudence scholarship has also addressed how judges in specialized problem solving courts can apply principles of therapeutic jurisprudence in their work.5 9 For instance, a recent symposium issue of Court Review, the official publication of the American Judges Association, was devoted entirely 53. See Dorf & Sabel, supra note 35, at 841-44, 852; Winick, Domestic Violence, supra note 12, at 39-45; Winick, Outpatient Commitment, supra note 24 (manuscript at 31-39). 54. See supra notes 7-31 and accompanying text. 55. Hora et al., supra note 4, at 476-77. 56. Winick, Domestic Violence, supra note 12, at 44. 57. Winick, Outpatient Commitment, supra note 24 (manuscript at 38). 58. See, e.g., LAW IN A THERAPEUTIC KEY: DEVELOPMENTS IN THERAPEUTIC JU- supra note 20 (anthology of therapeutic jurisprudence scholarship ranging across the legal spectrum). 59. See, e.g., Casey & Rottman, supra note 38, at 451-52, 455-56; Fritzler, supra note 24, at 14-1 to 14-22; Fritzler & Simon, supra note 12, at 59-62; Hora, supra note 4, at 1472-73, 1477, 1481-84; Hora et al., supra note 4, at 476-77; see also Carrie J. Petrucci, Respect as a Component in the Judge-Defendant Interaction in a Specialized Domestic Violence Court that Utilizes Therapeutic Jurisprudence,38 CRIM. L. BULL. 263, 266-67, 288-94 (2002); Shiff & Wexler, supra note 20, at 291-95 (discussing the therapeutic jurisprudence of teen courts); Simon, supra note 1 (manuscript at 6); Winick, Outpatient Commitment, supra note 24 (manuscript at 36); Winick & Wexler, supra note 4 (manuscript at 1-7). RISPRUDENCE, 1066 FORDHAM URBAN LAW JOURNAL [Vol. XXX to therapeutic jurisprudence and its application to judging.6° An understanding of therapeutic jurisprudence's approach and of the psychological and social work principles it uses can thus provide considerable help in the structuring of problem solving courts and in defining the role played by judges functioning within them. Both therapeutic jurisprudence and problem solving courts see the law as an instrument for helping people, particularly those with a variety of psychological and emotional problems. Our society has not done a particularly good job of dealing with many social problems, with the result that society often dumps them at the doorstep of the courthouse. When courts deal with such vexing problems as drug addiction, alcoholism, domestic violence, mental illness, child abuse and neglect, and juvenile delinquency, they can be seen to function as psychosocial agencies. In order for problem solving courts to succeed and function well, however, they need to be aware of some basic principles of psychology and social work. Thus, therapeutic jurisprudence can be understood as providing a theoretical foundation for much of the problem solving court movement, and a variety of principles that can help judges play this new and exciting role. I11. THERAPEUTIC JURISPRUDENCE PRESCRIPTIONS FOR PROBLEM SOLVING COURT JUDGES Problem solving courts are less involved with the adjudication of historic issues of fact than with functioning as psychosocial agencies that attempt to rehabilitate an offender or provide access to services designed to address the underlying problem that has brought the individual to court and monitor and supervise the treatment process. Therapeutic jurisprudence can provide instrumental prescriptions for how judges in problem solving courts can perform these new tasks. 6' Just as judges dealing with antitrust cases need to understand basic principles of economics and judges dealing with patent cases need to understand basic principles of engineering, judges in problem solving courts, dealing as they do with human problems, need to understand some principles of psychology, the science of human behavior. They must be aware that they are functioning as therapeutic agents, and that how they interact with the individuals appearing before them will have inevitable 60. Symposium, TherapeuticJurisprudence,37 CT. REv. 1, 1-68 (2000). 61. See Robert F. Schopp, Therapeutic Jurisprudence: Integrated Inquiry and Instrumental Prescriptions,17 BEHAV. Sci. & L. 589, 592-604 (1999) (describing therapeutic jurisprudence as providing "instrumental prescriptions" for law reform). 2003] THERAPEUTIC JURISPRUDENCE 1067 consequences for their ability to be rehabilitated or otherwise deal with their underlying problems. Individuals usually appear before problem solving courts because of social or psychological problems they have not recognized, or because of their inability to deal with these problems effectively. They may have alcoholism or substance abuse problems, which may contribute to repetitive criminality, domestic violence, or child abuse and neglect. 62 They may be repetitive perpetrators of domestic violence or child abuse because of cognitive distortions concerning their relationships with their spouses or children, or because they lack the social skills necessary to manage their anger or resolve problems through means other than violence. 63 They may suffer from mental illness that impairs their judgment about the desirability of their continuing to take needed medication.6 4 They may be in denial about the existence of these problems, refusing to take responsibility for their wrongdoing, rationalizing their conduct, or minimizing its negative impact on themselves and others. Many of these are problems that will respond effectively to available treatment, but only if the individual 65perceives that she has a problem and is motivated to deal with it. In these situations, the problem solving court judge cannot simply order the individual to recognize the existence of the problem and to obtain treatment. People must come to these realizations for themselves. Therefore, problem solving court judges must understand that although they can assist people to solve their problems, they cannot solve them. The individual must confront and solve her own problem and assume the primary responsibility for doing so. The judge can help the individual realize this, and, together with treatment staff, can help the individual to identify and build upon her own strengths and use them effectively in the 62. See Babb & Moran, supra note 11, at 8-9; Brown, supra note 11, at 1. 63. See Brown, supra note 11, at 1; Winick, Domestic Violence, supra note 12, at 77. 64. See Winick, Outpatient Commitment, supra note 24 (manuscript at 4, 14) (discussing the conditions and consequences that mentally ill individuals undergo when they fail to take their medication). 65. See Michael D. Clark, Change-Focused Drug Courts: Examining the Critical Ingredientsof Positive Behavior Change, NAT'L DRUG CT. INST. REV., Winter 2001, at 35, 44-46, 48-56 (suggesting that treatment programs in general are effective, but that factors related to the individual's own strengths are more important in treatment efficacy than the particular form of treatment used, and that court and program staff must build trust and find effective methods to encourage the individual to participate in treatment, affording increased choice and autonomy). 1068 FORDHAM URBAN LAW JOURNAL [Vol. XXX collaborative effort of solving the problem.66 How can the judge facilitate this process? A. Improving Interpersonal Skills At the outset, the judge should always treat the individual with dignity and respect.6 7 Treatment is a collaborative process between the individual and the treatment team, including the judge, and the conditions necessary to forge a genuine treatment alliance include reciprocal understanding, mutual affirmation, emotional attachment, and respect.6 8 Therefore, the judge and treatment personnel must act so as to give the individual the perception that they are 69 empathic, accepting, warm, and willing to permit self-expression. Judges performing these functions need to improve their interviewing, counseling, and interpersonal skills. Even though they have engaged in wrongdoing, a special sensitivity to the individual's pain, shame, sadness, and anxiety in coming to terms with the existence of psychological or behavioral problems that have produced criminality and the victimization of others is called for in the judge-offender interaction.70 Even though judges may strongly disapprove of the individual's conduct, they must strive in the judgeoffender dialogue to be supportive, empathetic, warm, and good listeners. 7 ' These are highly sensitive conversations and offenders will be less likely to recognize their problems and resolve to deal with them effectively if they perceive the judge to be cold, insensitive, or judgmental. This is not to say that the judge should excuse or justify the individual's inappropriate behavior, but the judge should direct her disapproval at the individual's antisocial conduct, and not at the individual herself.7 2 Once the individual has come to the recognition that her prior behavior has been inappropriate, the judge and treatment staff should shift to a future-focused orientation that concentrates on the steps needed to solve the prob66. See id. at 57-58 (discussing strength based approaches and their importance in the drug treatment court treatment process). 67. Petrucci, supra note 59, at 285-86. 68. See Clark, supra note 65, at 44-46. 69. See id. 70. See JOHN BRAITHWAITE, CRIME, SHAME, AND REINTEGRATION 85 (1989); John Braithwaite, Restorative Justice and Therapeutic Jurisprudence, 38 CRIM. L. BULL. 244, 257-61 (2002) [hereinafter Braithwaite, Restorative Justice]. 71. See Braithwaite, Restorative Justice, supra note 70, at 257-61. 72. Id. The literature on restorative justice criticizes the shaming of the individual, recommending instead "reintegrative shaming," a condemnation of the act and not the person. Id. 2003] THERAPEUTIC JURISPRUDENCE 1069 lem.73 Focusing upon past failures, by contrast, can result in demoralization and resignation."4 To be an effective agent of change, the judge should convey empathy to the individual, even if not to her act. Empathy involves the ability to experience another person's feelings and to see the world through that person's eyes.7 5 Empa- thy has both cognitive and affective components.7 6 The judge should convey both an intellectual response to the individual, communicating that she understands the individual's predicament, and an emotional response, communicating that she shares the individual's feelings. The individual, after all, is a fellow human being with a human problem that the judge is attempting to help her deal with. Therefore, in discussing the individual's problem with her, and the need for rehabilitation or treatment, the judge should communicate a sense of caring, sympathy, genuineness, and understanding.77 Just as physicians need to develop their "bed-side manner," judges need to develop what can be termed their "benchside manner."7 8 This can help create a comfortable space in which offenders can feel free to express their emotions about their problems and deal effectively with them. Judges playing this role need to be sensitive to the psychological mechanisms of transference and counter-transference, and how they can affect communication in the judge-offender interaction. Transference is an individual's tendency to project onto a current relationship, feelings that originated in prior relationships with others, frequently parents and siblings.7 9 Counter-transference oc73. See Michael D. Clark, Change-FocusedYouth Work: The CriticalIngredients of Positive Behavior Change, 3 J. CENTER FAM. CHILD. & CTS. 59, 63-64 (2001) [herein- after Clark, Change-Focused Youth]; Clark, Drug Courts, supra note 65, at 53-55. 74. See Clark, Drug Courts, supra note 65, at 53-54. 75. Bruce J. Winick, Legal Counseling About Advance Directive Instruments: Client Denial and Resistance in the Advance Directive Context: Reflections on How Attorneys Can Identify and Deal With a PsycholegalSoft Spot, 4 PSYCHOL. PUB. POL'Y & L. 901, 909 (1998) [hereinafter Winick, Legal Counseling]. 76. Gerald A. Gladstein, Understanding Empathy: Integrating Counseling, Developmental, and Social Psychology Perspectives, 30 J. COUNSELING PSYCHOL. 467, 468 (1983); Daniel W. Shuman, The Use of Empathy in Forensic Examinations, 3 ETHICS & BEHAV. 289, 296 (1993). 77. See DANIEL GOLEMAN, EMOTIONAL INTELLIGENCE 145-46 (1995); DANIEL GOLEMAN, WORKING WITH EMOTIONAL INTELLIGENCE 137-46 (1998); Marjorie A. Silver, TherapeuticJurisprudence/Preventive Law and Law Teaching: Emotional Intelligence and Legal Education, 5 PSYCHOL. PUB. POL'Y & L. 1173, 1196-1203 (1999). 78. Cf Francis Peabody, The Care of the Patient, 88 JAMA 877, 877-82 (1927) (discussing the importance of physician's bedside manner). 79. Marjorie A. Silver, Love, Hate, and Other Emotional Interference in the Lawyer/Client Relationship, 6 CLINICAL L. REV. 259, 263-65 (1999) [hereinafter Silver, 1070 FORDHAM URBAN LAW JOURNAL [Vol. XXX curs when the judge transfers feelings onto the individual that stem from the judge's own prior relationships. 0 The judge should be sensitive to the possibility of transference on the part of the individual, and should seek to induce positive transference and avoid negative transference when possible. For example, individuals who have experienced repeated exposures to the criminal justice system because of their repetitive wrongdoing are likely to have had parents, family members, teachers, friends, and others unsuccessfully lecture them about their need to shape up and achieve rehabilitation. To the extent that these individuals infected the lectures with a paternalistic tone, they might have stimulated feelings of resentment and humiliation or produced a degree of resistance or psychological reactance.8 Hence, problem solving court judges should seek to avoid tainting their interactions with offenders with these prior negative feelings and relational images that these former unsuccessful lectures might have produced. Similarly, problem solving court judges should be sensitive to the possibility of counter-transference on their own part, which can interfere with their ability to develop rapport with the individual. Judges will inevitably have had prior experiences with criminal offenders that have produced anger and other negative reactions directed at such offenders. The reemergence of these negative feelings engendered in prior relationships with offenders may produce a negative counter-transference toward the individual appearing in the problem solving court that might compromise the problem solving court judge's ability to play the therapeutic role contemplated. Judges, therefore, must be on their guard to avoid such counter-transference, in other words, to avoid associating the individual appearing before them in the problem solving court with prior offenders who may have invoked strong negative emotional reactions. In helping offenders come to grips with their criminality and underlying psychological and behavioral problems, problem solving court judges need to be good listeners.8 2 Rather than giving the Love & Hate]; Stephanie Stier, Essay Review, Refraining Legal Skills: Relational Lawyering, 42 J. LE GAL EDUC. 303, 310-12 (1992); Winick, Legal Counseling, supra note 75, at 911. 80. Silver, Love & Hate, supra note 79, at 262-65; Stier, supra note 79, at 312; Winick, Legal Counseling, supra note 75, at 911-1.9. 81. See Sharon S. Brehm & Jack W. Brehm, PSYCHOLOGICAL REACTANCE: A TiiiEoRY OF FREEDOM AND CONTROL 13 (1981). 82. See Clark, Drug Courts, supra note 65, at 50-51 (discussing the need for improved communication skills in drug treatment court contexts, including the use of 2003] THERAPEUTIC JURISPRUDENCE 1071 offender a speech, the judge should seek to promote dialogue. At appropriate intervals, the offender should be encouraged to speak, since this will require the judge to stop speaking, signaling to the individual that what she has to say is important. Problem solving court judges need to convey to individuals appearing before them that they genuinely wish to hear them, are interested in their problems, and are interested in attempting to help them find a solution. They need to listen to the individual in ways that are attentive, non-judgmental, and sympathetic. Finally, active listening and 83 passive listening techniques may be helpful in this connection. Problem solving court judges also need to learn to read the individual's non-verbal forms of communication and to interpret her underlying feelings.8 4 Non-verbal forms of communication, such as facial expression, body language, and tone of voice, can be important clues for understanding both the individual's emotions in the context of the sensitive judge-offender conversation, and how judges should respond to them. 8 5 Attempting to facilitate the individual's acceptance of responsibility for her wrongdoing, and to motivate the individual to accept help for an underlying problem that may contribute to it, requires a high degree of psychological sensitivity on the part of the problem solving court judge. B. Avoiding Paternalism and Respecting Autonomy It is important for problem solving court judges to avoid paternalism in these judge-offender interactions. The judge may be fully aware that the individual suffers from an emotional or psychological problem that produces repetitive criminality and that she could respond effectively to available rehabilitative programs. A paternalistic attitude, however, is not likely to help in facilitating the individual's recognition of these realities. Its recipients often experience paternalism as offensive. Paternalism may create resentment and possibly backfire by producing a reflective listening, in which the judge or treatment staff member frequently checks the accuracy of what she believes the individual has said); see also Steven Keeva, Beyond the Words: Understanding What Your Client Is Really Saying Makes for Successfid Lawyering, A.B.A. J., Jan. 1999, at 60 (providing pointers on good listening techniques for attorneys to use in lawyer-client conversations); Silver, supra note 77, at 1174 (discussing listening skills on the part of lawyers). 83. See David A. Binder et al., LAWYERS AS COUNSELORS: A CLIENT-CENTERED APPROACH 16-24 (1991); see also Winick, Legal Counseling, supra note 75, at 912. 84. See Winick, Legal Counseling, supra note 75, at 912 (extolling the virtues of "nonverbal responses that express interest, caring, warmth, and sympathy"); see also Stier, supra note 79, at 309. 85. See Winick, Legal Counseling, supra note 75, at 910-11. 1072 FORDHAM URBAN LAW JOURNAL [Vol. XXX psychological reactance to the advice offered that might be counter-productive.86 Many offenders will be in denial about their underlying problems, and paternalism is unlikely to succeed in allowing them to deal with such denial.87 Instead, it may produce anxiety and other psychological distress that will make it harder for them to do so. Accordingly, problem solving court judges should respect the autonomy of the individuals they are seeking to help, thus, allowing them to make decisions for themselves about whether to accept treatment, rather than mandating treatment participation. For example, a problem solving court judge should remind an individual charged with a drug offense that she is free to deal with the charges in criminal court and accept a sentence to prison if found guilty. Drug treatment court is not required, but is only an alternative option. Hence, the judge should remind the offender that the choice is hers, and that she should not elect the drug treatment court unless she is prepared to admit the existence of a problem and express a willingness to deal with it. This is important because the approach can be empowering to such individuals who often feel powerless and helpless. Individuals should see the role of the problem solving court judge in discussing rehabilitation with the offender as one of persuasion rather than of coercion. Judges should be aware of the psychological value of choice. 88 Self-determination is an essential aspect of psychological health. Moreover, if individuals who make their own choices perceive them as non-coerced, they will function more effectively and with greater satisfaction. People who feel coerced, by contrast, may respond with a negative psychological reaction,89 and may experience various other psychological 86. See BREHM & BREHM, supra note 81, at 13; Winick, Legal Counseling, supra note 75, at 913 (suggesting that if attorneys are not "attentive, nonjudgmental and sympathetic," clients may respond negatively). 87. See Winick, Legal Counseling, supra note 75, at 903 (warning that lawyers should expect that clients may frequently be in denial); see also Bruce J. Winick, Redefining the Role of the Criminal Defense Lawyer at Plea Bargainingand Sentencing: A TherapeuticJurisprudence/PreventiveLaw Model, 5 PSYCHOL. PuB. POL'Y & L. 1034, 1064 (1999) [hereinafter Winick, Redefining]. 88. See BRUCE J. WINICK, THE RIGHT TO REFUSE MENTAL HEALTH TREATMENT 334 (1997) [hereinafter WINICK, RIGHT TO REFUSE]; Bruce J. Winick, Coercion and Mental Health Treatment, 74 DENY. L. REV. 1145, 1147 (1997) [hereinafter Winick, Mental Health]; Bruce J. Winick, On Autonomy: Legal and Psychological Perspectives, 37 VILL. L. REV. 1705, 1707 (1992) [hereinafter Winick, Autonomy]. 89. See BREHM & BREHM, supra note 81, at 49-51 (explaining the results of a test showing that a removal of "freedom" in choice of essay topic caused a significantly higher reactance arousal). 20031 THERAPEUTIC JURISPRUDENCE 1073 difficulties. 90 In appropriate circumstances, the judge should communicate to the individual her own views concerning the individual's best interests, but should ultimately cede the choice to the individual. To succeed, treatment or rehabilitation will require a degree of intrinsic motivation on the part of the individual. 91 If she participates in the program only because of extrinsic motivation, then it will be less likely that she will internalize the program goals and genuinely change her attitude and behavior. The individual should be afforded a choice not only in deciding whether to elect to participate in a problem solving court, but also in the design of the rehabilitative plan, when feasible. Typically, there may be many options available in fashioning such a plan, including variations in rehabilitative techniques and service providers.9 2 The problem solving court judge can lay the options out for the individual, who can then exercise choice. The individual's choice concerning the various issues that arise in the design of the treatment plan can be empowering, and can influence the likelihood of success. Some problem solving court judges describe what they do as "benevolent coercion," and extol the virtues of judicial coercion as an essential ingredient in the rehabilitative enterprise.9 3 While many of the individuals in drug treatment or other problem solving courts who agree to participate in a course of treatment or rehabilitation will benefit from the structure, supervision, and compliance monitoring that they provide, it is neither appropriate nor desireable to regard this as coercion. 94 An individual who decides to accept diversion to a drug treatment or other problem solving court, or to plead guilty and accept treatment in a problem solving court program as a condition of probation, is making a legally voluntary 90. See Bruce J. Winick, The Side Effects of Incompetency Labeling and the Implications for Mental Health Law, I PSYCHOL. PUB. POL'Y & L. 6, 13-22 (1995) [hereinafter Winick, Side Effects]. 91. See ALBERT BANDURA, SOCIAL FOUNDATIONS OF THOUGHT AND ACTION: A SOCIAL COGNITIVE THEORY 471-72, 477-78 (1986); Bruce J. Winick, Harnessing the Power of the Bet: Wagering With the Government as a Mechanism for Social and Individual Change, 45 U. MIAMI L. REV. 737, 762-63 (1991) [hereinafter Winick, Harnessing]; see also EDWARD DECI, INTRINSIC MOTIVATION 53 (Elliot Aronson ed., 1975). 92. See Babb & Moran, supra note 11, at 25-34 (detailing the various options available to families who are affected by subtance abuse). 93. See, e.g., Jeffrey Tauber, Address at the Eleventh Annual Symposium on Contemporary Urban Challenges at the Fordham University School of Law (Feb. 28, 2002), in Problem Solving Courts: Adversarial Litigation to Innovative Jurisprudence 29 FORDHAM URB. L.J. 1755, 1901-05 (2002) ("We have an opportunity through problem-solving courts to use coercion, but to do it in a benevolent way."). 94. See Winick, Harnessing, supra note 91, at 768-72. 1074 FORDHAM URBAN LAW JOURNAL [Vol. XXX choice as long as she is not subjected to duress, force, fraud, or a form of improper inducement.95 Individuals making such choices may be functioning within a coercive context. Although they may face hard choices, none of which may be agreeable, they are in these difficult situations because of their own actions. For example, they were not arrested as a vehicle for forcing them into treatment, but because they possessed drugs or committed some other crime. Moreover, they are free to either plead not guilty and face trial, or plead guilty and receive an appropriate sentence. Therefore, extending to them the additional option of accepting a rehabilitative alternative does not make the choice they will then face a coercive one. An analogy to plea-bargaining is appropriate. Although offenders who have been offered plea deals may feel that the choice they are required to make is coercive, as long as the prosecutor's offer was not illegal, unauthorized, unethical, or otherwise inappropriate, the courts have held that it does not constitute legal coercion.96 Accordingly, if an individual's decision about whether to accept a guilty plea is not coerced, then her decision as to whether to accept diversion to a problem solving court, or to plead guilty and accept treatment through the auspices of such a court as a condition for probation also would not constitute coercion in a legal sense. Pleabargaining is an example in which individuals face hard choices, but where, absent an offer that is improper, illegal, or unethical, the courts will not consider the choice to be coercive. Parole from prison presents another example. The criminal justice system may release an individual on parole before the expira97 tion of her prison term, if she accepts certain conditions of parole. These conditions may include, for example, an undertaking that the individual not use alcoholic beverages or associate with other individuals who have a criminal record. 98 Unless the conditions of parole are improper or illegal, we would consider the individual's choice to accept these conditions as voluntary, rather than co- 95. ALAN WERTHEIMER, COERCION 172, 267-68, 287, 301, 308 (1987). 96. See Bordenkircher v. Hayes, 434 U.S. 357, 363-65 (1978); Brady v. United States, 397 U.S. 755, 758 (1970); WERTHEIMER, supra note 95, at 172, 267-68, 287, 301, 308; Winick, Harnessing, supra note 91, at 771 n.107; Winick, Mental Health, supra note 88, at 1153-55. 97. 18 U.S.C. §§ 3561-3566 (2000). 98. Id. § 3563(a)(5), (b)(6). 2003] THERAPEUTIC JURISPRUDENCE 1075 erced.99 Even though the individual's desire to be released from prison might be so powerful that she may feel that she has no real choice other than to accept the conditions of parole, it would be absurd for the law to invalidate her choice on grounds of coercion. As long as the conditions of parole are not unlawful, improper, or unreasonable, parole accords the individual an opportunity that she may find more desirable than serving the remainder of her sentence in prison. Opportunities for diversion from the criminal process are essentially similar. An individual charged with a crime that must decide between facing her charges or accepting diversion into a rehabilitative program may be facing a hard choice. It is a fair and reasonable choice, however, and is not one that the law will invalidate on grounds of coercion.100 99. See WERTHEIMER, supra note 95, at 172, 267-68, 287, 301, 308 (discussing how choices given to defendants are not considered coercive unless illegally imposed upon them). 100. See McKune v. Lile, 122 S. Ct. 2017, 2042-43 (2002) (O'Connor, J., concurring) (distinguishing pressure from compulsion for Fifth Amendment purposes, and noting that compulsion is limited to choices involving grave consequences). At least this is true where diversion is reasonably related to the offense charged, and does not impose conditions that would themselves be unconstitutional. Requiring mental health treatment as part of a diversion program for an individual whose offense does not involve mental illness, for example, would seem to be an arbitrary governmental imposition, arguably offending due process. Moreover, although an individual may have the constitutional right to refuse such treatment, such a right may generally be waived, as long as the waiver is competent, voluntary, and knowing. WINICK, RIGHT TO REFUSE, supra note 88, at 303, 345-70. While some constitutional rights may be unwaivable, for example the right to be free of cruel and unusual punishment, most will be subject to waiver, at least where the right in question is reasonably related to the governmental purpose sought to be served. See, e.g., Wyman v. James, 400 U.S. 309, 317-18 (1971) (requiring waiver of Fourth Amendment right to be free of warrantless searches as condition for receipt of certain welfare benefits when such search was related to assessing continued eligibility for benefits). It is important that an offender understand the risks of entering into a problem solving court treatment program as part of diversion from the criminal court or as a condition of probation, and it is an important role of defense counsel to ensure that the client possesses this understanding. See Martin Reisig, The Difficult Role of the Defense Lawyer in a Post-Adjudication Drug Treatment Court. Accommodating Therapeutic Jurisprudenceand Due Process, 38 CRIM. L. BULL. 216, 218-19, 221-23 (2002) (discussing the relationship between a defense lawyer and a defendant and the role the defense lawyer should play). Defense counsel who fail to fully advise their clients in this regard may be depriving them of the effective assistance of counsel guaranteed by the Sixth Amendment, particularly since those offenders who repeatedly fail to comply with program requirements may, as a consequence, be re-diverted back to criminal court for a revocation of probation or a criminal sentence. See Mae C. Quinn, Whose Team Am I on Anyway? Musings of a Public Defender About Drug Treatment Court Practice, 26 N.Y.U. REV. L. & Soc. CHANGE 37, 54-56 (2000-2001). Moreover, failing to fully advise the client concerning the potential consequences of 1076 FORDHAM URBAN LAW JOURNAL [Vol. XXX The line between coercion and choice can be a narrow one. Moreover, the concept of legal coercion does not necessarily coincide with the psychological perception of coercion. When judges, attorneys, and other court personnel help individuals consider whether to opt for a problem solving court rehabilitative alternative instead of criminal court, they should rely on persuasion or inducement, and avoid coercion and negative forms of pressure. Of course, once the individual chooses the treatment option, her future actions are constrained by the choice she has voluntarily entered into. Thus, the individual, as a condition for accepting the drug treatment court, may agree to attend a drug treatment program, to remain drug-free, and to submit to periodic drug testing. 1 1 The individual knows that if she fails to comply, the court can apply sanctions (typically graduated sanctions) agreed to in advance by the individual." 2 Moreover, the individual knows that repeated non-compliance can result in expulsion from the program and return to criminal court, or a violation of probation if the individual had pled guilty.' 03 While, in a manner of speaking, these potential sanctions may pressure the individual to comply and even induce her compliance, there is no need to regard this as coercion. It is not legal coercion, and, if properly applied, the individual may not even experienced it as psychologically coercive. In this connection, problem solving court judges must understand what makes people feel coerced and feel that they have acted voluntarily. They should be aware of the implications of recent research conducted on coercion by the MacArthur Research Network on mental health and the law.'0 4 This research examined the entering into a problem solving court program not only can compromise the defendant's rights, but also can undermine the potential for treatment success. See Reisig, supra, at 218-19, 221-23 (discussing the importance of a defendant's informed consent and waiver); Winick & Wexler, supra note 4 (manuscript at 4-5). 101. Winick & Wexler, supra note 4 (manuscript at 3). 102. Hora et al., supra note 4, at 528. 103. Id. at 478, 510. 104. Nancy S. Bennet et al., Inclusion, Motivation, and Good Faith:The Morality of Coercion in Mental Hospital Admission, 11 BEHAV. Sci. & L. 295, 296-305 (1993); William Gardener et al., Two Scales for Measuring Patient Perceptions of Coercion During Mental HospitalAdmission, 11 BEHAV. Sci. & L. 307, 308-20 (1993); Steven K. Hoge et al., Perceptions of Coercion in the Admission of Voluntary and Involuntary Psychiatric Patients, 20 INT'L J.L. & PSYCHIATRY 167, 170-81 (1997); Charles W. Lidz et al., Perceived Coercion in Mental Hospital Admission: Pressures and Process, 52 ARCHIVE GEN. PSYCHIATRY 1034, 1034 (1995); John Monahan et al., Coercion and Commitment: UnderstandingInvoluntary Mental Hospital Admission, 18 INT'L J.L. & PSYCHIATRY 249, 252-55 (1995) [hereinafter Monahan et al., Coercion and Committment]; John Monahan et al., Coercion in the Provision of Mental Health Services: The 2003] THERAPEUTIC JURISPRUDENCE 1077 causes and correlates of what makes people feel coerced. Conducted in the context of mental patients facing involuntary hospitalization, this research concluded that even though patients were subjected to legal compulsion through involuntary civil commitment, they did not feel coerced when treated with dignity and respect by people who they perceived as acting with genuine benevolence, and as providing them with a sense of "voice" (the ability to have their say), and with "validation" (the impression that what they said was taken seriously). °5 This research also showed that there is a correlation between the degrees of perceived coercion, and the kinds of pressures that doctors, families, and friends placed upon the patient. 10 6 Negative pressures, such as threats and force, tend to make individuals feel coerced, whereas 0 7 positive pressures, such as persuasion and inducement, do not.1 Even though courts subject these individuals to the legal compulsion of civil commitment, if treated in these ways, they tend to not feel coerced. Problem solving court judges should apply the lessons of the MacArthur research on coercion, treating all individuals appearing before them with dignity and respect, and according them voice and validation in the interactions they have with them. 8 They should avoid negative pressures and threats, relying instead on positive pressures like persuasion and inducement. If they do so, it is more likely that they will experience the treatment they have consented to as voluntary, rather than coerced, and as a result, they will experience the psychological benefits of choice, 10 9 and avoid the negative psychological effects of coercion."10 People resent others treating them as incompetent subjects of paternalism, and suffer a diminished sense of self-esteem and self-efficacy when not permitted to make decisions for themselves. 11' To the extent that MacArthur Studies, in COERCION IN MENTAL HEALTH SERVICES (J. Morrissey & John Monahan eds., forthcoming) (manuscript at 5-17, on file with authors) [hereinafter Monahan et al., Coercion in the Provision]. 105. Monahan et al., Coercion in the Provision,supra note 104 (manuscript at 1214, 17). 106. Id. (manuscript at 10-12, 17). 107. Id. (manuscript at 10-11, 17). 108. See Winick, Mental Health, supra note 88, at 1166-67. 109. See WINICK, RIGHT TO REFUSE, supra note 88, at 303, 327-44; Winick, Civil Commitment Hearing,supra note 47, at 48-52; Winick, Outpatient Commitment, supra note 24 (manuscript at 38-39). 110. See Winick, Mental Health, supra note 88, at 1159. 111. ALBERT BANDURA, SELF-EFFICACY: THE EXERCISE OF CONTROL 12-13 (1997); Winick, Side Effects, supra note 90, at 6. 1078 FORDHAM URBAN LAW JOURNAL [Vol. XXX the individual experiences her decision to participate in a problem solving court treatment or rehabilitative program as voluntary, it 112 can have significant positive effects on treatment outcome. Therefore, problem solving court judges should avoid paternalism and respect the individual's autonomy. They should encourage and urge the individual to accept needed treatment or rehabilitation. They should use techniques of persuasion or inducement, but avoid a heavy-handed approach, strong negative pressure, and coercion. If handled properly by the problem solving court judge, conversations about the need for treatment or rehabilitation can be an opportunity for empowering the individual in ways that can have positive psychological value. Such conversations can build self-esteem and self-efficacy, without which these individuals may not feel they can succeed in what might be a long and difficult path to rehabilitation. These conversations can facilitate the individual's sense that she has made a voluntary choice in favor of treatment, which can increase her commitment to achieving the treatment goal, and set in motion a variety of psychological mechanisms that can help to bring it about. C. Using Persuasion and Sparking Motivation Persuasion, not coercion, should be the hallmark of judge-offender interactions in problem solving court contexts. Involvement in the judicial process itself can provide an important motivating force that may prompt the individual to reexamine past patterns and seek to undergo change. The process of attempting to persuade the individual in this direction often will occur in conversations with the individual's own defense attorney. 13 At times, however, the judge will participate in the persuasion process through conversations with the individual occurring in open court. When such occasions present themselves, judges functioning in the problem solving court context should remember that judicial conversations that are perceived by the individual as coercive may be counterproductive, and that there is an important difference between coercion and persuasion.114 112. See Michele Cascardi et al., ProceduralJustice in the Context of Civil Commitment: An Analogy Study, 18 BEHAV. Sci. & L. 731, 736-38 (2000); Winick, Civil Commitment Hearing, supra note 47, at 40-41, 48. 113. See Astrid Birgden, Dealing with the Resistant Criminal Client: A Psychologically-Minded Strategy for More Effective Legal Counseling, 38 CRIM. L. BULL. 225, 226-29, 232-39 (2002); Winick, Redefining, supra note 87, at 1049-51. 114. See supra notes 88-95 and accompanying text. 2003] THERAPEUTIC JURISPRUDENCE 1079 When the context calls for the judge to attempt to persuade the individual to accept treatment or rehabilitation, the judge's understanding of the social psychology of persuasion will augment her ability to be an effective persuader." 15 This body of psychological research identifies three elements of the persuasion process as critical-source, message, and receiver.1 16 The content of the message, and the way it is delivered, significantly influence the likelihood of persuasion. Persuasion theory has postulated an elaboration likelihood model, which asserts that certain persuasive elements are influenced by the extent to which the receiver of information is actively involved in the processing of the information presented." l7 Under this theory, when the individual receiving the information has a high likelihood of elaboration, this will maximize the potential for successful persuasion, for example, when they engage in issue-relevant thinking about the content of the message itself. It is more likely that a judge will be successful in persuading individuals if the to them and they have prior message has personal relevance 1 18 knowledge about the issue. Individuals facing criminal charges wish to minimize the risk of imprisonment, so they will value strategies that can achieve this result. Problem solving courts should present them with information concerning the rehabilitative alternatives to criminal court that they present, as well as the positive consequences for successfully completing the program, including, in many cases, the dismissal of charges. Then, judges should leave them free to engage in instrumental thinking concerning the value of electing these rehabilitative alternatives. Judges should also give these individuals the opportunity to ask questions about their options, the freedom to engage in their own processing of the information, and the freedom to reach their own decision. Additionally, they should fully encourage individuals facing criminal charges to discuss their options O'KEEFE, PERSUASION: THEORY AND RESEARCH 134 (1990); PETTY & JOHN T. CACIOPPO, COMMUNICATION AND PERSUASION: CENTRAL AND PERIPHERAL ROUTES TO ATTITUDE CHANGE (1986) (discussing 115. See DANIEL J. see also RICHARD E. the use of central and peripheral persuasion in communication as a method of changing people); Winick, Legal Counseling, supra note 75, at 915-17. 116. See O'KEEFE, supra note 115, at 130-88. 117. PETTY & CACIOPPO, supra note 115, at 1-60. 118. See Wendy Wood, Retrieval of Attitude-Relevant Information From Memory: Effects on Susceptibility to Persuasionand on Intrinsic Motivation, 42 J. PERSONALITY & SOC. PSYCHOL. 798, 799-800 (1982); Wendy Wood & Carl A. Kallgren, Communicator Attributes and Persuasion:Recipients' Access to Attitude-Relevant Information in Memory, 14 PERSONALITY & SOC. PSYCHOL. BULL. 172, 172-73 (1988). 1080 FORDHAM URBAN LAW JOURNAL [Vol. XXX with counsel, and provide them with a reasonable opportunity to see counsel and think about their choices. This form of persuasion, known as "central route" persuasion, 19 can be more effective than pressuring the individual to make a decision, and can allow her to internalize the rehabilitative goal and increase the intrinsic motivation needed to accomplish it. The elaboration likelihood model of persuasion is similar to the motivational interviewing technique developed for use by clinicians to help motivate individuals to deal with problems of addiction and alcoholism. 120 Thus, problem solving court judges should also master the techniques of motivational interviewing. Although treatment staff' 2' and the individual's own attorney 122 will be primarily involved in conducting such motivational interviews, occasionally problem solving court judges will personally engage in such interviews. Likewise, judges will have the opportunity to reinforce the motivational effects of interviews conducted by the treatment staff or defense attorney. Five basic principles underlie this technique.' 23 First, the interviewer needs to express empathy.' 24 This involves understanding the individual's feelings and perspectives without judging, criticizing, or blaming. 125 Second, the interviewer, in a non-confrontational way, should seek to develop discrepancies between the individual's present behavior and important personal goals. 26 Applying this approach, the judge should attempt to elicit the individual's underlying goals and objectives.12 In addition, the judge should attempt to get the individual to recognize the existence of a problem through the use of interviewing techniques, such as openended questioning, reflective listening, providing frequent statements of affirmation and support, and eliciting self-motivational statements. 128 For example, if the individual wishes to obtain or keep a particular job, the judge can ask questions designed to probe the relationship between her drinking or substance abuse and her poor performance in previous employment that may have 119. PETTY & CACIOPPO, supra note 115, at 3-11. 120. WILLIAM R. MILLER & STEPHEN ROLLNICK, MOTIVATIONAL INTERVIEWING: PREPARING PEOPLE TO CHANGE ADDICTIVE BEHAVIOR 51-63 (1991). 121. See Clark, Drug Courts, supra note 65 (manuscript at 23-27). 122. See Birgden, supra note 113, at 237. 123. MILLER & ROLLNICK, supra note 120, at 55-62. 124. Id. at 55-56. 125. Id. 126. Id. at 56-58. 127. Id. 128. See id. (describing the general goal of eliciting discrepancies). 2003] THERAPEUTIC JURISPRUDENCE 1081 resulted in dismissal. An interviewer will create motivation for change only when individuals perceive the discrepancy between how they are behaving and the achievement of their personal goals. Third, the interviewer should avoid arguing with the individual, 29 which can be counter productive and create defensiveness. Fourth, when resistance is encountered, the interviewer should attempt to roll with the resistance, rather than becoming confrontational. 130 This requires listening with empathy and providing feedback to what the individual is saying by introducing new information, which also allows the individual to remain in control, to make her own decisions, and to create solutions to her problems. Fifth, it is important for the interviewer to foster self-efficacy in the individual. The individual will not attempt change unless she feels that she can reach the goal, overcome barriers and obstacles to its achievement, and succeed in effectuating change. 3 ' Problem solving court judges, court officials, treatment professionals working with them, and lawyers counseling clients about their options to enter into problem solving court rehabilitative programs should learn the techniques of motivational interviewing and apply them in their conversations with offenders. These motivational interviewing techniques have recently been adapted for application by criminal defense lawyers dealing with clients who have recurring problems, are in denial about their problems, and are resistant to change.' 32 Additionally, in mental health courts, the techniques have been adapted to apply to lawyers representing clients, mental health professionals, and mental health court judges. 33 These techniques can be particularly effective when the individual finds herself in a situation where change is being contemplated.'3 4 The individual's arrest and need to face criminal charges can present the pressures needed to create such a teachable moment or therapeutic opportunity in which the individual is ready to contemplate change, accept responsibility for wrongdoing, and consider making a genuine commitment to rehabilitation. The 129. 130. 131. 132. 133. Id. at 58-59. Id. at 59-60. Id. at 60-62. See Birgden, supra note 113, at 232-42. See Winick, Outpatient Commitment, supra note 24 (manuscript at 38-42). 134. See JAMES 0. PROCHASKA & JOHN C. NORCROSS, SYSTEMS OF PSYCHOTHERA TRANSTHEORETICAL ANALYSIS 109-39 (1994); Birgden, supra note 113, at APY: 240-41; James 0. Prochaska et al., In Search of How People Change: Applications to Addictive Behaviors, 47 A. PSYCHOL. 1102, 1108-12 (1992); James 0. Prochaska & J. M. Prochaska, Why Don't Continents Move? Why Don't People Change?, 9 J. PSYCHOTHERAPY INTEG. 83, 83-102 (1999). 1082 FORDHAM URBAN LAW JOURNAL [Vol. XXX use of motivational interviewing and related psychological strategies as a means to sparking and maintaining the individual's motivation to accept needed treatment can substantially increase the potential of problem-solving courts to help the individual solve her problem. D. Increasing Compliance Once the individual has made the decision to enter into a treatment program under the auspices of the problem solving court, the judge's focus should shift to the question of how to assure the individual's compliance with the requirements of the treatment program. A body of therapeutic jurisprudence scholarship has examined how to increase compliance in a variety of legal contexts. 35 This work has analyzed the adaptation of health care compliance principles and methods of behavioral or contingency contracting to legal contexts and has explored the implications of the psychology of procedural justice for improving compliance with judicial orders. These approaches can easily be adapted for application in the context of problem solving courts. 1. Health Care Compliance Principles A parallel problem arises in the context of medical practicehow can physicians and other healers convince their patients to comply with their medical advice? Patient non-compliance is a significant problem that has been addressed extensively in the medical literature.' 3 6 Behavioral medicine, a field of medical practice that builds on principles of behavioral psychology, offers much help for the resolution of this problem.1 37 For example, the work of psychologists Donald Meichenbaum and Donald Turk sets forth a number of health care compliance principles, and shows how they can be applied by health care professionals to increase the likeli135. See, e.g., David B. Wexler, Health Care Compliance Principles and the Insanity Acquitee Conditional Release Process [hereinafter Wexler, Health Care], in WEXLER & WINICK, supra note 41, at 199, 208-1.7; Winick, Harnessing,supra note 91, at 740-88; Winick, Redefining, supra note 87, at 1062; David B. Wexler, How the Law Can Use What Works: A TherapeuticJurisprudence Look at Recent Research on Rehabilitation, 15 BEHAV. SCi. & L. 365, 367-70 (1997) (book review). 136. See, e.g., DONALD MEICHENBAUM & DENNIS C. TURK, FACILITATING TREATMENT ADHERENCE: A PRACTITIONER'S GUIDEBOOK 149-84 (1987). 137. See id. (discussing the theory and practice of behavioral medicine). 2003] THERAPEUTIC JURISPRUDENCE 1083 hood that their38 patients will follow their treatment recommendations. Patients frequently fail to comply with treatment recommendations when the physician or other health care professional fails to instruct them adequately concerning the treatment they are asked to follow. 139 The way the health care professional interacts with the patient during the period when treatment is explained can be most significant. 14 0 If the physician appears to be distant, distracted, reads case notes, uses professional jargon, asks questions calling for brief "yes" or "no" answers, fails to allow the patient the opportunity to tell her story in her own words, describes the treatment plan imprecisely or in technical terms, acts paternalistically, or is abrupt with the patient, compliance with the health care professional's treatment recommendations will be less likely.' 4 ' To increase treatment adherence, Meichenbaum & Turk recommend that the health care provider introduce herself to the patient, avoid jargon, and elicit the patient's views, preferences, and active involvement in designing the treatment plan.142 Providing patient choice even concerning minor details of treatment can be significant in increasing compliance. 143 Moreover, adherence is furthered when the physician is perceived as prestigious, competent, caring, and motivated by the patient's best interests. 4 4 Involving family members and others significant to the patient can also increase compliance.' 4 5 These individuals can provide encouragement and reminders to the patient and can help the physician access information about compliance. 14 6 Furthermore, when the patient makes a public commitment concerning the treatment plan to significant others, compliance is more likely to occur than when the patient's commitment is privately made. 14 The anticipated disapproval of a respected physician and of the patient's family members, as well as 138. Id.; see Wexler, Health Care, supra note 135, at 199 (discussing health care compliance principles and their application by criminal judges making insanity acquittee conditional release decisions). 139. See Meichenbaum & Turk, supra note 136, at 55-60. 140. See id. at 78. 141. See id. 142. Id. at 81. 143. Id. at 171. 144. Id. at 172. 145. Id. at 124. 146. Id. at 162. 147. Id. at 173-75 (discussing the making of formal commitments through a written instrument). 1084 FORDHAM URBAN LAW JOURNAL [Vol. XXX her own anticipated self-disapproval, can significantly increase the patient's motivation to comply.'48 These health care compliance principles can be adapted for use by judges in problem solving courts. Judges, court personnel, treatment providers, and defense attorneys, should take care to instruct the individual carefully and understandably concerning her obligations relating to participation in the treatment program and reporting to court. The judge should act concerned rather than distant, provide the individual with her undivided attention during conversations, avoid jargon, allow the individual an opportunity for voice, avoid paternalism, and generally treat the individual with respect. At the outset, the judge should encourage the individual's active involvement in both the negotiation and design of the rehabilitative plan, providing as great a degree of choice concerning the details as is possible in the circumstances. The judge should treat the individual with dignity and respect, conveying to the individual that her actions are motivated by the individual's best interests. Whenever possible, the judge should seek to involve family members and significant others in the process during which the individual makes a commitment to participate in treatment, and that commitment should be made in a formal and relatively public way. 2. Behavioral Contracting A behavioral psychology technique known as "behavioral contracting" or "contingency management" captures many of these compliance principles and may be helpful in insuring the individ49 ual's compliance with the treatment or rehabilitative program. Under this technique, an explicit, formal contract is entered into between the parties in which specific goals are set forth. 5 " Motivation to achieve the goal is facilitated through contract terms providing for a combination of agreed-upon rewards or positive reinforcers for success or aversive conditioners for failure. 5 ' This technique is frequently used in clinical practice, and the combination of positive reinforcement to encourage compliance and aversive conditioning to decrease or extinguish non-compliant behavior 148. Id. 149. See Winick, Harnessing,supra note 91, at 772-89, 793-97 (advocating the adoption of a wager system to cure social ills such as drug addiction, unproductivity in government employment, and repeat criminal offenses, which borrows heavily from behavioral conditioning theory and uses both positive and negative reinforcement). 150. Id. at 780-89. 151. Id. at 779-81. 20031 THERAPEUTIC JURISPRUDENCE 1085 can be quite effective.1 52 The behavioral contract provides rewards and penalties for the achievement and failure to reach intermediate and long-term goals.' 5 3 Partial rewards or sanctions can be provided periodically as intermediate goals that are measured at frequent intervals are either achieved or missed, thereby facilitating the progressive shaping of the individual's behavior. 54 Tailoring the rewards and punishments to the individual's incentive preferences, and involving the individual in the process of selecting the goals and reinforcers, when practicable, can significantly increase motivation to comply.1 55 Such sub-goals will best maintain self-mo- tivation, provide inducements to action, provide guideposts for performance, and,156if attained, will produce self-satisfaction needed to sustain effort. The behavioral contract makes explicit the expectations of everyone involved. Target behaviors are objectified, measurable, and well understood by all parties. The setting of explicit goals is itself a significant factor in their achievement.' 57 The behavioral contract is a successful method of ensuring compliance, in part, because of the goal-setting effect, 158 which posits that the mere setting of a goal produces positive expectancies for its achievement that themselves help to bring about success.159 Goals serve to structure and guide the individual's performance, providing direction and focusing interest, attention, and personal involvement. The behavioral contract also engages other mechanisms of psychology that help to achieve effective performance, including intrinsic motivation, cognitive dissonance, and the psychological value of choice. 60 Such behavioral contracts are explicitly used in many drug court treatment programs. 16' Whether or not formally negotiated and executed, individuals agreeing to participate in treatment or reha152. Id. at 780-81. 153. Id. at 758-59. 154. Id. at 748 n.31, 758 n.66 (defining shaping as the breaking down of a desired behavior into smaller easier to understand steps). 155. Id. at 780-88. 156. Id. at 758. 157. Id. at 761. 158. Id. 159. Id. 160. Id. at 761-70. 161. See William M. Burdon et al., Drug Courts and Contingency Management, 31 J. DRUG IssuEs 73, 74, 78-81 (2001); David Carson, Civil Proceedings: Legal Frameworksfor Psychology's Contribution, in THE HANDBOOK OF PSYCHOLOGY IN LEGAL CONTEXTS 395, 406 (David Carson & Ray Bull eds., 2d ed. 1995); Simon, supra note 1, at 452; Winick & Wexler, supra note 4 (manuscript at 4). 1086 FO...
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