Empowerment as a method of resolving legal problems

Empowerment has been a central theme in my thinking and practice in relation to non-adversarial justice and therapeutic jurisprudence in recent years. Empowerment is a central theme of many of the vectors of the comprehensive law movement or non-adversarial justice. For example, restorative justice, therapeutic jurisprudence, creative problem solving, Indigenous sentencing courts, forms of ADR such as facilitative mediation and holistic law all highlight the value of empowerment in various contexts. Arguably one vector where it has not gained great prominence is problem solving courts. I will return to this shortly.

Empowerment as a method of resolving legal problems has sound theoretical and research foundations. In recovery from substance abuse, researchers emphasise that it is the individual’s internal change mechanisms that are critical. Individuals need to recognise the need for change, commit to a plan to bring about change, implement the plan and use strategies to maintain the change – these are processes recognised by the transtheoretical stages of change model. Treatment supports these change processes but it is not a substitute for them. Indeed, often people recover from substance abuse or make other changes without the intervention of treatment professionals.

There is also support for empowerment in the literature concerning why some offenders desist from offending and others do not. Shadd Maruna’s desistance study found that those who were able to desist from offending had the sense of being in control over their lives as compared to those who did not desist.

Empowerment has the advantage of promoting internal commitment to implementing decisions the person has had a hand in making. The process of empowerment may also promote healing – such as is often the case for victims of crime (and some offenders) involved in restorative justice practices.

Yet the implication from the term “problem solving court” is that it is the court that solves the problem before the court. This idea colors how judicial officers, lawyers and others perceive and interact with participants in these court programs.

Arguably apart from mental health courts, the elements of the different species of problem solving courts – drug courts, family violence courts, community courts – do not include the empowerment of participants. The elements concern processes that happen to or around participants or that do not concern them at all.

The concept of the court as problem solver is borrowed from mainstream courts and mainstream judging, only it is given a therapeutic purpose. While novel processes such as collaborative decision-making are used, the decision makers usually do not include the participants. Coercive processes used by mainstream courts such as imprisonment are adapted for use in some problem solving courts.

A risk with a court as problem solver is that it may disempower participants, inhibit participant self-efficacy and promote a sense of dependency.

In contrast, a therapeutic jurisprudence approach to drug courts, family violence courts, community courts and the like emphasises that judging and advocacy in these courts should be solution-focused rather than problem solving. They should be directed at facilitating participants devising, committing to, implementing and maintaining change processes, “solutions”. The should support the individual’s self-efficacy, their confidence in being able to implement change, rather than saying to them: we will decide what is good for you and you must go along with this or sanctions will be applied.

A solution-focused approach sees the court as comparable to the treatment process – a time limited intervention to assist individual change processes that may well have already begun before the person comes to court and that may well need to continue long after the court program has ended.

Thus therapeutic jurisprudence advocates, amongst other things, that participants should be given choice whether to enter the program and choice as to rehabilitation programs, they should be able to set their own goals and strategies for their program and beyond, they should be involved in problem-solving decisions when problems arise with their performance and that judges should facilitate these processes, support participant self-efficacy and have positive expectations concerning participants’ own abilities to change. Some problem solving court judicial officers already apply some or all of these strategies.

It is suggested that a solution-focused approach is more likely to promote long-lasting change and enhance participant’s coping and change processes.

These themes and more are explored further in two recent pieces:
1. An article I have written, which is to appear shortly in Revista Juridica Universidad de Puerto Rico. It is called “Should Problem Solving Courts be Solution-Focused Courts”. A version is available at
SSRN: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1725022

2. A chapter that David Wexler and I have written for the Organisation of American States for a publication on court drug programs. “Promoting Societal and Juridical Responsivity to Rehabiltiation: The Role of Therapeutic Jurisprudence”. It is available on SSRN at
http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1722278