Reconfiguring crime control and criminal justice: governmentality and problem-solving courts.

• Author: Sirotich, Frank

Introduction

Problem-solving courts or special therapeutic courts have proliferated in the last decade. They have emerged across a number of countries such as Australia, Canada, the United Kingdom and the United States. (1) Courts falling under the rubric of problem-solving courts include community courts, drug courts, and mental health courts. Though they vary by case type, they share a number of common elements including the application of judicial authority and the threat of criminal sanctions to compel a defendant's compliance with treatment or a psychosocial intervention over a period of time. Rooted in the principles of therapeutic jurisprudence, a philosophy concerned with producing therapeutic effects for individuals involved in the legal process, these courts link accused to treatment and then supervise this connection to promote treatment compliance. By participating in treatment, accused may forego criminal processing or sentencing or may be accorded a reduction in criminal sanctions. It is expected that treatment engagement will reduce criminal behaviours and the likelihood of future interactions with the criminal justice system. (2)

This article utilizes the concept of governmentality as conceived by Foucault and subsequently developed by others to consider the significance of these courts as emerging practices which define crime control policy and the administration of criminal justice. Governmentality refers to the point of contact between institutional technologies of regulation by state and non-state actors aimed at adjusting the conduct of individuals or populations and techniques of self-regulation through which individuals bring themselves into line with socially accepted aspirations and identities. In the following pages, the concept of governmentality will be employed to track how the regulation of crime has been reproblematized and the governance of criminal justice newly rationalized with the emergence of problem-solving courts. The governmentality analytic will also be employed to examine the emergence of the new technologies of governance utilized by these courts and to consider their significance for the policy areas of crime control and criminal justice. It is suggested that the proliferation of these courts provides evidence of the ascendance of an economic rationality behind the governance of crime and criminal justice. Further, these courts represent a significant permeation of the discourses of human service disciplines into the discourse of criminal justice. Taken together these changes signal a significant alteration in the substance and nature of criminal justice and in the governance of crime.

Problem-solving Courts, Therapeutic Jurisprudence and Crime Control

Problem-solving courts, also known as treatment courts, vary in their organization by jurisdiction, by the type of problem they seek to address and by the type of offender they serve. However, most share five common characteristics: (1) the court concerns itself with a broadened range of non-legal problems such as the psychosocial and treatment needs of accused; (2) the court makes use of its authority to solve these non-legal problems; (3) the court takes into consideration and endeavours to influence outcomes that go beyond the application of the law; (4) the court attempts to advance greater collaboration between state and non-state entities to attain common aims; and (5) the court employs judicial authority to motivate accused to accept treatment and to monitor their adherence to treatment. (3)

Many of these specialty courts are based on the principles of therapeutic jurisprudence, which is an interdisciplinary approach to the application of law. Specifically, therapeutic jurisprudence is concerned with reducing the antitherapeutic effects of legal rules and procedures, and increasing their therapeutic potential. Though therapeutic jurisprudence and problem-solving courts developed separately from one another, (4) they share similar aims and can be seen to have a symbiotic power/knowledge relationship. (5) Principles of therapeutic jurisprudence inform the operation of problem-solving courts by providing insights from psychology and the behavioural sciences to reshape judicial practices and thereby increase offender compliance with treatment. In turn, problem-solving courts provide "rich and fascinating laboratories to generate and refine therapeutic jurisprudence approaches." (6) Continued application of these techniques of persuasion serves to increase knowledge of how therapeutic principles may best be applied within a court context to alter the conduct of accused.

Proponents of problem-solving courts argue that such courts introduce efficiency into the adjudication of certain types of cases. (7) These courts are increasingly viewed as a key component of crime control policy in a number of jurisdictions. (8) Treatment courts are expected to reduce criminal behaviours and the likelihood of future interactions with the criminal justice system, reduce the backlog of cases the courts will have to try, and open up jail and prison space by dealing with special-needs offenders in the community. The question of whether these problem-solving courts are efficacious has been the focus of many academic investigations (9); however, the purpose of this article is to reflect upon the implications of this judicial innovation for social control policy and the governance of criminal justice. To address this issue, this article draws on the concept of governmentality brought forth by Foucault and further developed and applied by others.

The Evolution of Governmentality: Rationalities and Technologies

Foucault's work on governmentality and that of subsequent writers offers a useful framework for the analysis of crime control policy and the governance of criminal justice. (10) Within a Foucauldian framework, government is broadly conceptualized as any action whose purpose is to influence, shape or regulate the conduct of an individual or of populations. (11) Government is not limited to the actions of the state but rather includes entities operating outside the institutions of the state such as schools, families, and the medical and helping professions. (12) Further, governmental power is both objectifying and subjectifying. That is, the study of governmentality focuses on the relations between institutional modes of regulation by state and nonstate actors and also on modes of self-regulation by which individuals work on themselves to shape their own subjectivity or social identity. (13) Governmental power is used to shape individuals by aligning their choices with the objectives of governing authorities. (14)

Miller and Rose further developed the concept of governmentality. (15) They focused their attention on two fields of analysis. The first concerns governmental rationalities, which are modes of reasoning that underlie particular governmental practices and supply them with their objectives, targets for regulation, and justification. The second concerns governmental technologies, which are the complex of knowledges, procedures, actors, and techniques through which rationalities are translated into the realized effects of governmental ambitions.

Other theorists suggest that the analysis of governmentality includes the study of discourses and changes in their character. (16) Systems of governance function through discourse. Discourses impose a particular structure of reality on our minds by defining our concepts and thereby limiting or shaping how we view forms of human behaviour and how we respond to these forms of behaviour. (17) They also constitute subjectivities by defining roles and obligations among different categories of people. (18) Further, discourse acts as the conceptual glue holding together a particular constellation of knowledges, procedures, actors and techniques that operate to regulate the actions and decisions of individuals.

Foucault's work on governmentality and that of subsequent writers offers a useful framework for the analysis of crime control policy and the governance of criminal justice. (19) The concept of governmentality will be used to trace how the governance of crime has been problematized and the governance of criminal justice newly rationalized with the emergence of problem-solving courts. The concept will also be used to explore the significance to these policy areas of the emergence of new technologies of governance, signified by the growth of problem-solving courts across a number of jurisdictions.

Emerging Rationalities of Crime Control and Crime Justice

Criminal courts have traditionally operated as mechanisms of dispute resolution between the state and individuals concerning allegations of criminal wrongdoing. Though a branch of the state, the courts function as neutral arbiters resolving issues of historical fact or overseeing juries engaged in the adjudicatory process. (20) Conventional judicial reasoning is individualistic and retrospective in its orientation. (21) It assumes that injuries occur because some individual is the author of a wrongful or negligent act, assigns blame post hoc and then dispenses individual justice. (22) Conventional criminal justice may also be said to be founded on a bureaucratic rationality as it aims to achieve fairness, impartiality and uniformity in the application of rules and procedures. Further, the law is applied in accordance with the principles of due process, which dictate the procedures the state must follow before it can lawfully impose sanctions. Both rationalities serve to circumscribe the role of the court and the power of the state.

By comparison, problem-solving courts have emerged to address a variety of human problems that are believed responsible for individuals coming in conflict with the law. According to Winick, "[p]roblem solving courts are less involved with the adjudication of historic issues of fact than with...