Theoretical Foundations: Therapeutic Jurisprudence and Problem-Solving Courts

• Author: Richard D. Schneider - Hy Bloom - Mark Heerema
• Pages: 39-65

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chapter three

Theoretical Foundations:

Therapeutic Jurisprudence and

Problem-Solving Courts

A. INTRODUCTION

In this chapter we turn our attention to therapeutic jurisprudence, the theory

that has animated the recent phenomenon of problem-solving courts with-

in North America and has formed the theoretical underpinning of mental

health courts.1 Throughout the course of this chapter we focus on the tenets

of this theory and examine how it has impacted our conception of mentally

disordered accused in today’s society. This examination lays the foundation

for understanding the remainder of this text, which, in many ways, can be

seen as the application of this theory in the context of a mental health court.

It is important for those involved, or those who may be interested in be-

coming involved with mental health courts (or any problem-solving court), to

gain a solid understanding of therapeutic jurisprudence. By acquiring a basic

knowledge of this theory, service providers will better appreciate the ultimate

goals of the court program and better inform their own participation. Addi-

tionally, the ability to meaningfully evaluate the functioning of a court, such

as a mental health court, requires familiarity with the theory underlying it.

1 The constitution (or policy statements) of mental health courts will often expressly

acknowledge reliance on principles of therapeutic jurisprudence. See, for example, Lisa

Shoaf, “A Case Study of the Akron Mental Health Court” (2003–04) 32 Cap. U. L. Rev.

975, where at 975 the author quotes the mission statement from the Akron Mental

Health Court: “The Akron municipal mental health court offers a therapeutically juris-

prudent approach to support a psychiatrically stable and crime-free lifestyle for persons

with mental illness.”

40 MENTAL HEALTH COURTS

B. PROBLEM-SOLVING PARADIGM

Before examining therapeutic jurisprudence and its application within the

four walls of a mental health court, we must step back and appreciate the

broader problem-solving movement currently spreading across North Amer-

ica, of which mental health courts are only one example. As a theoretical

perspective, therapeutic jurisprudence has produced an explosion in interest

well beyond its application to mental health courts.

Since its articulation in the late 1980s as a theory of mental health law,

therapeutic jurisprudence has proliferated far beyond mental health law to

f‌ind reception within various other f‌ields of law. It has informed the develop-

ment of an entire new class of “problem-solving” courts within the criminal

justice system, including mental health courts, that strives to apply princi-

ples of therapeutic jurisprudence.2

As their name implies, problem-solving courts are committed to using

the criminal justice system in a manner that addresses the underlying causes

of, or contributors to, crime within def‌ined segments of our population. The

onset of these courts in many ways represents a mounting dissatisfaction

with the incapability of the criminal justice system to offer certain classes

of accused any hope for betterment. The tired mantra of “getting tough on

crime” voiced in the last half-century has been an ineffective and superf‌icial

solution to the issues or problems that were causing individuals, like the

mentally ill, to come into contact with the criminal justice system. The fail-

ings of the traditional criminal justice system have not only affected groups

like the mentally ill but also many others with underlying problems.

As a result, in addition to mental health courts, there now exists a wide

array of problem-solving courts including (but certainly not limited to) pros-

titution courts, drug courts, juvenile mental-health courts, domestic violence

courts, child abuse courts, aboriginal courts, teen courts, handgun courts,

and homeless courts. Each court is designed specif‌ically to address the

unique needs and circumstances of its participants.

The oldest and most numerous type of problem-solving courts existing

in North America are drug courts. It is somewhat ironic that, while thera-

2 Somewhat prophetically, in 1991 the founders of therapeutic jurisprudence predicted that

the soil was ripe for a new conceptualization of justice to take hold: “A new perspective is

needed to rejuvenate the area and to infuse it with academic appeal. The time has come

to conceptualize new approaches and research directions”; see David B. Wexler & Bruce

J. Winick, “Therapeutic Jurisprudence as a New Approach to Mental Health Law Policy

Analysis and Research” (1991) 45(5) U. Miami L. Rev. 979 at 980.