Transcript Professor Kate Warner

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