Hon. Peggy Fulton Hora
Judge of the Superior Court of California (Ret.)
Community Legal Centres Tasmania
14-15 November 2013
“The safe thing to do is to sit on the bench and administer justice. The risky thing to
do is to balance mercy with justice, compassion with rules.” Judge Juanita Stedman
Can we reduce the
anti-therapeutic
consequences
 Enhance the
therapeutic ones
 Without
subordinating due
process and other
justice values?

Slobogin, Christopher, “Therapeutic Jurisprudence: Five Dilemmas to Ponder,”
1 Psychology Public Policy and the Law 193 (1995)

Can we enhance the
likelihood of desired
outcomes and
compliance with
judicial orders by
applying what we
know about behavior
to the way we do
business in court
Seeks to maximize emotional,
psychological and relational wellbeing
of those involved with legal matters
2. Focuses beyond strict legal rights,
responsibilities, duties, obligations and
entitlements
1.
Daicoff, Susan, “Law as a Healing Profession: The ‘Comprehensive Law Movement’,”
6 Pepperdine Dispute Resolution Law Journal 1 (2006)
Adapted from Judge Judith S. Kaye, Former Chief Judge, New York
Adelaide Thinker in Residence
Judges believe they can and should
play a role in the problem-solving
process
 Outcomes matter--court is not just
based on a process and precedent

Adelaide Thinker in Residence
Recognize the therapeutic potential of
the court’s coercive powers
 Finds “Judicial Leverage” is an
appropriate tool

Treatment
&
Intervention
Probation,
CPS, &
Corrections
Courts
Reduce recidivism in criminal cases
Save incarceration and other costs
of social services, e.g., foster care
3. Have great public support
4. High participant satisfaction
(procedural justice)
5. High judicial satisfaction
1.
2.








Drug court
Drug treatment court
Sobriety court
DWI court
Healing-to-Wellness court
Family treatment court
Collaborative court (CA)
Non-Adversarial Justice (HI)

The processes the court uses to develop solutions-therapeutic, inclusive of participants and the court
team--and in the concept of the solution that is
being sought--addressing underlying issues and
promoting an ability to lead a constructive, happy
and law-abiding life in the community.
Michael King,“Solution-Focused Judging Benchbook,” Monash U. ,Melbourne AU (2009)





Problem-solving focus
Proactive judicial role
Less adversarial, team approach
Integration of tx and social services
Enhanced access to information





Ongoing judicial supervision
Use of sanctions and incentives
Direct interaction between litigants and
judge
Community outreach
Adapted from “Components of Collaborative Justice Courts,” Judicial Council of California,
Administrative Office of the Courts, http://www.courtinfo.ca.gov/programs/collab/background.htm
State prison population up 700% over 1970-2010

Violent felony
“Serious” felony
Third strike = any felony including “wobblers”

25 years to life

Modified last year. Change supported by
prison guards’ union


U.S. jail and prison
population is 2.3
million as of 2008
 Four times population
of Tasmania
 5% of the world’s
population; 25-50%
prisoners

“Life After Prison Can Be Deadly, a Study Finds,” The New
York Times, Jan. 11, 2007 p. A23
“Inmate Count in U.S. Dwarfs Other Nations’,” The New York
Times, April 23, 2008 p. 1
“U.S. Prison Population Rises Despite a Drop in 20 States,”
NYTimes Dec. 9, 2009 p. A22



1:133 Americans
incarcerated
In 2009, 5.1
million
(1: 45) adults in the
United States—
was under some
form of criminal
justice supervision
in the community


1:4 young, African American men
incarcerated, on parole or probation
91% of Louisiana prisoners serving LWOP for
non-violent crimes are African American
Largest mental hospital in U.S.?
Los Angeles County Jail with 3,000 MI inmates every day
Earley, Pete, Crazy: A Father's Search Through America's Mental Health Madness (Putnam, 2006)



30% of California’s prison population has a
mental illness
About the population of Darwin
Prison costs in California U.S.$8.6 billion
annually
They are
overwhelmingly
young, male, poorly
educated, unemployed
and have high rates of
mental illness,
substance abuse,
disability and chronic
disease.
 About 1,700 people
per year




Arrestees with “heavy alcohol” abuse (>5
drinks/day) ¾ men and 2/3 women
Alcohol abusers also tested positive for
other drugs (65%) and about ¼ (23%)
tested positive for two or more drugs
At time of arrest 48% of offenders were
positive for drugs and 15% were looking
for drugs
>60% of those entering prison identify
alcohol and other drugs as a significant
contributor to their offending
 ~75% of prisoners have a substance abuse and
co-occurring mental health disorder
 Ten separate prison admissions is not
uncommon


Dr. Frances Donaldson, Risdon Prison Clinic
98.5%
of Tasmanian prisoners
Correctional Primary Health Services


$307 per day
$112,000 per year per prisoner
RISDON PRISON $307/DAY
HOTEL GRAND CHANCELLOR $250/DAY
Risdon Prison $307/day
Henry Jones Art Hotel $289/day



Indigenous population
13-15% in prison
General population
3.5%
U.S. drug courts
credited with reducing
the imbalance of
African Americans in
the prison population
“We need to incarcerate
the offenders we are
afraid of and treat the
ones we are just mad at.”

“…[E]xpectation of post-release drug use was
a significant predictor of re-incarceration”
Payne, Jason, Macgregor, Sarah, McDonald, Haley, “Prevalence and Issues Relating to Cannabis Use among
Prison Inmates: Key Findings from Australian Research Since 2001 ,National Cannabis Prevention and
Information Centre (NCPIC), 2013.
Expensive
Ineffective
Not a general
deterrent
 More than 1/3 (39%) of
Australian prisoners rearrested and reincarcerated 2 years
after release




The proportion of Australians who agree that
“stiffer sentences are needed” has declined
Little or no confidence in the prison system’s
ability to:
a) Rehabilitate prisoners (88%)
b) Punish (59%)
c) Teach prisoners skills (64%)

L.Roberts, D Indermaur, What Australians think about crime and justice results from the 2007 Survey of Social Attitudes, Australian Institute of Criminology
(AIC) 2007

Tangible costs of alcohol and illicit drugs in
AU =
AU$19 Billion
DJ Collins, HM Lapsley, The costs of tobacco, alcohol and illicit drug abuse to Australia society in 200405, Commonwealth of Australia, 2006




EXCEPT:
Compulsory Drug Treatment Correctional
Centre
Focuses on treatment and recovery
2006 NSW Drug Court, Justice Health
Services and Dept. of Corrective Services




Supportive environment
Clean and sober housing
Outpatient chemical dependence treatment
Ancillary services
“When you can
quit, you don’t
want to and when
you want to, you
can’t”
Casper (Geoffrey Rush)
in “Candy” (2006)
Planned

















Australia
England
Panama
Canada
El Salvador
Scotland
Ecuador
Ireland
Mariturius
New Zealand Netherlands
Costa Rica
Chile
Israel
Argentina
Italy
Trinidad and Tobago
Caribbean
Dominican Republic
Belgium
Bahamas
Macedonia
Japan
Brazil
Vietnam
Norway
Wales
Mexico
13 Key Principles for Court-directed Treatment
and Rehabilitation Programmes

First in 1999 Parramatta NSW
2 more in NSW
4th in planning stage in Wollongong

In all states or territories except QLD

2007 Tasmania – Court Mandated Drug
Diversion Program


Mental health list/court
a) First 2000 Adelaide
b) Tasmania - Hobart, Launceston, Burnie and
Devonport
 Aboriginal sentencing
a) Nunga Court in Adelaide
b) Koori Court in Melbourne
 Youth treatment court ACT
 Neighbourhood Justice Centre, Victoria









Improved timeliness to finalisation of youth justice
matters
Encouragement of more consistency in the court’s
decisions
Greater development and application of expertise in youth
justice matters
Better coordination of youth justice support services to
the court
Increased collaborative approaches between the agencies
involved in youth justice.
Achieved all but first goal
Will expand to Launceston in 2014
No Family Treatment Court in Tasmania





NSW closed Youth Drug
and Alcohol Court (July
2012)
Queensland closed Murri
Court, Special
Circumstances and Drug
Treatment Courts
(But allowed “Indigenous
Sentencing List “)
Claimed fiscal concerns
Drug Court in QLD saved
AU$6 million
year



“Mr Cranny said the court was attempting to
fill the gap of the drug and specialised courts,
which had been scrapped by the Newman
Government.”
Attorney-General Jarrod Bleijie said the
program was not offered to serious
offenders.
"We are an unashamedly tough Government,
but we also support our most vulnerable,'' Mr
Bleijie told The Courier-Mail.


“Conservatives favor voluntary drug courts
because they provide options for those
people who are sincerely committed to
taking responsibility to reform their lives.”
“The reduced recidivism rates that result
from the use of drug courts benefit public
safety, but drug courts can also reduce the
burden of incarceration on state budgets
because they cost less—between $2,500 and
$4,000 annually per offender.”
1,474
Adult
221
DWI
600+
hybrid
39
Co-Occurring
25
Federal
District
Courts
459
Juvenile
321
Family
129
State
Vets
5
Federal
Vets
127
Tribal
30
Re-Entry
5
Campus
Gambling
Reentry
Gun
Child
Supp
Truancy
Integrated
Tx
Community
P-S
Courts
Veteran
Home
less
Parole
Violation
Mental
Health
DV
Prostitution
 82% criminal courts are post-
plea
 140,000 participants
nationwide
 1.2 million eligible but not
served
 Reduce substance use by >35%
 Reduce crime by 50%
 Reduce recidivism -- 75%
graduates are arrest free; crime
reduction remains >14 years
 11 meta analyses show:
 $1 = $2.21 - $3.36 savings
 Up to $27 per dollar invested if
all costs are counted
 Family Drug Court saves $1015,000 per child
Develop partnerships with the drug diversion
court and mental health list
2. Support and promote their work
3. Encourage the development of other solutionfocused courts:
a) Supreme court, post conviction, more serious
crimes
b) Community supervision
c) Drink/drug driving court
d) Family treatment court
e) Integrated youth court
1.