Therapeutic jurisprudence in the youth court AIJA Youth Justice and Child Protection Conference, 3rd April 2006 Professor Kate Warner Faculty of Law University of Tasmania

Critique of traditional criminal justice Ineffectiveness in terms of reform and crime prevention Theft of conflicts from the central parties to the dispute Failure to hold offenders to account or to respond to the needs of victims Reliance on punishment: harm + harm = more harm, not less Remoteness in time, space and social relations from crimes and the problems and people which influence their occurrence Reliance upon formal rather than informal social control Insensitivity to cultural and ethnic diversity

New paradigms of justice Restorative justice Indigenous justice Therapeutic jurisprudence

Restorative justice …. ‘a process whereby all the parties with a stake in a particular offence come together to resolve collectively how to deal with the aftermath of the offence and its implications for the future’ (Marshall, 1996:37). …. ‘it is about restoring victims, restoring offenders and restoring communities’ (Braitwaite 1999:1)

Elements of Restorative Justice Stakeholders:victims, offenders, families and their communities Participatory and deliberative processes Restorative outcomes

Values of restorative justice Participation Respect for all participants Empowerment (non-domination) Commitment to agreed outcomes Flexibility and responsiveness of processes and outcomes Forgiveness and apology

RJ practices Conferencing Sentencing circles Victim-offender mediation Reparative probation

RJ in summary Reconciliation Reparation Reintegration Not: Regimentation, Responsibility and Retribution Or: Rehabilitation, Resocialisation or Remedial Treatment

Indigenous Justice …. a variety of contemporary justice practices in which indigenous people have a central role in responding to crime… It can be seen as a way to rebuild Indigenous communities and to redress the destruction of the Indigenous peoples’ culture and social organisation brought about by colonialism and State violence (Daly, Hayes and Marchetti, 2006).

Indigenous justice practices Urban courts: the Nunga Court the Koori Court the Murri Court Circle Courts Community Justice Groups participation in sentencing

IJ courts: common elements An offender must be indigenous and have entered a guilty plea The charge is one normally heard in a Magistrates’ Court The offence must have occurred in the geographical area covered by the court A magistrate retains the ultimate power in sentencing a the offender, while seeking the advice of the Indigenous Elders

Therapeutic jurisprudence Therapeutic Jurisprudence concentrates on the law's impact on emotional life and psychological well-being. It is a perspective that regards the law (rules of law, legal procedures, and roles of legal actors) itself as a social force that often produces therapeutic or anti-therapeutic consequences. It does not suggest that therapeutic concerns are more important than other consequences or factors, but it does suggest that the law's role as a potential therapeutic agent should be recognized and systematically studied. (International Network of Therapeutic Jurisprudence)

TJ practices Problem solving courts Drug courts (youth drug courts) Teen courts Domestic violence courts Mental health courts Sexual offence/ homeless persons’ courts A new way of judging Corrections and administrative tribunals

Problem solving courts: distinctive features Non-traditional approach On-going judicial supervision. Integration of service provision Direct engagement with defendants Non-adversarial approach

TJ principles: a new way of judging … use processes to promote the positive involvement of participants in the court processes and thereby promote respect between judicial officer and participants, including actively listening to participants, courteously allowing them to fully present their case and acknowledge their position …. Extending the judicial role to a search for solutions to an offender’s cycle of offending (quoted by Jelena Popovic 2003).

Evaluations Positive outcomes from the intervention (AIC, 2004):  reductions in drug use and offending both during the program and after completion;  improvements in the health and well-being of participants;  financial benefits in terms of reduced law enforcement, prison and court costs; and  social benefits: long-term reductions in drug use, increased employment and re-uniting families

Differences Different histories, each emerged independently Conferencing: policy makers, administrators and practitioners Indigenous justice: Indigenous groups, judicial officers (& policy makers) Therapeutic justice: activism of judicial officers in the US Different sites of activity Role and participation of victims Different offender focus

Similarities in the criminal justice context All at the penalty phase All emphasise improved communication and relational interaction Emphasis is placed on using persuasion and support to encourage offenders to be law abiding Emphasis on procedural justice Incaceration is a penalty of last resort All assume more time is required in each case

TJ and the Youth Court? Back to a welfare approach in a new guise? Both utilise psychiatry, psychology and social work Problems with the new wave of specialised courts Plea of guilty Expensive and fashionable? Willing judicial officers

Long term future for TJ Adopting deeper processes and values underpinning problem courts: trust procedural fairness narrative competence recognition of the role of cognition and action etc Judicial supervision of orders

Thank You Professor Kate Warner Faculty of Law University of Tasmania