William Schma
Quickly complete this sentence: rather informs and in so doing provides the defendant to confront his or her
addiction openly, the judge misses a crit- siderations enter into the mix to balance thought “to heal,” close this journal and TJ because—like it or not—the law does consequences. This is empirical fact.
The topic of this special issue of Court Review is “Therapeutic Jurisprudence,” single definition of TJ captures it fully. judges to accept “no contest” or nolo contendere pleas in sex offense cases in lieu of a guilty plea. TJ will not dictate TJ: “the use of social science to study the whether a judge should do this or not. It will, rather, ask the judge to consider the well-being of the people it affects.”1 It is mistake would be a therapeutic event.
the study of the role of law as a healing agent, and it offers fresh insights into the sex offenders a nolo plea may reinforce a process of denial that will frustrate the offender’s rehabilitation. If the offender insured and the insurer: a non-privileged laws as well as the roles and behavior of later to a probation officer or sex abuse coup de grace. The anti-therapeutic quences such as frustration of rehabilita- result, however, can be that the patient is to identify the potential effects of pro- result from the judge’s acceptance of the not take necessary steps to cleanse his or her mind and return to productive work.
by the law into a position of denial, the “ethic of care” to those affected.
tions or override important societal val- an addict or alcoholic usually must over- of speech and press. It suggests, rather, affliction with an uncontrollable disease, without “trumping” the established legal action and methods to evaluate it. TJ is, therefore, not merely a speculative exer- cise, but rather action-oriented. It seeks that a proposal may cause unwittingly.
whatever reason, a judge accepts a nolo Footnotes
1. Christopher Slobogin, Therapeutic Jurisprudence: Five Dilemmas to
Ponder, 1 PSYCHOL., PUB. POL. AND LAW 193, 196 (1995).
4 Court Review - Spring 2000
with what I call “good faith conferences.” areas to demonstrate how TJ applies.
noted that the practical necessities of the to routinely accept nolo pleas in felony times have always shaped the rules of law including the plaintiff or the family of the deceased and the physician-defendant.
ing of the National Association for Court with a guilty plea. The attorneys prepare their clients for this in advance if they other occurred in the office of a neutral, experienced personal injury attorney. All course, the significant role lawyers play issues facing the courts in the future.5 In to prepare clients for therapeutic or anti- Bar Association Journal entitled, “The noted public dissatisfaction with the jus- apply a more therapeutic approach to lit- ted the crime. Nor have I received a sin- igation so that the parties’ feelings of accepted nolo pleas. As a result, at sen- everything from the physician’s attitude more effectively with the reality of their solving” orientation to their responsibil- drug treatment court in my community.
nificant litigant needs and is worth fur- A drug court diverts certain non-violent, from the traditional adversarial criminal are mainstream. They do give a fresh per- responsibility for the enforcement of its judges): “Discourage litigation. Persuade or unresponsive to realities that cause its pants is less than 15%. For graduates, it spoke of “sociological jurisprudence,” apply TJ principles to criminal justice.
effects it creates.3 Oliver Wendell Holmes 2. Abraham Lincoln, in QUOTE IT! MEMORABLE LEGAL QUOTATIONS, 7. David Rottman & Pamela Casey, A New Role for Courts?, NAT’L 3. Roscoe Pound, The Scope and Purpose of Sociological Jurisprudence, 8. TRIAL COURT PERFORMANCE STANDARDS WITH COMMENTARY 16 4. Oliver Wendell Holmes, in THE SOCIOLOGY OF LAW 4 (James Simon, (Bureau of Justice Assistance, 1997). For more information about the Trial Court Performance Standards, see Pamela Casey, Defining 5. Francis Gavin and James Thomas, The Top Ten Issues Facing State Optimal Court Performance: The Trial Court Performance Standards, Courts in 1996 and What You Can Do About Them, Workshop at COURT REVIEW, Winter 1998 at 24 [available on the Web at Eleventh Annual Conference, National Association for Court (last Management, Albuquerque, New Mexico, July 18, 1996.
6. Richard Reuben, The Lawyer Turns Peacemaker, 82 A.B.A. J., Spring 2000 - Court Review 5
ing.”11 That healing role is at the heart that come to light in legal trappings.
tice.12 He called for “involved judging” we will have failed in our responsibility ‘therapeutic jurisprudence.’”13 He rec- reality” for most judges.14 Yet he point- tem we supervise. We’ll deserve it.
leadership in this movement. Judith S.
unless we craft our own response, it will she called “hands-on courts.” She made crucial value for critical thinking.
culture of adversarial representation and law reviews, and made presentations on relationships, in which argument rises to substance abuse and criminal justice, drug Jurisprudence. Judge Schma has presided values that the legal system need not and over the Kalamazoo County Substance Abuse Diversion Program, a diversion pro- social harmony, and the ethic of care. TJ gram for felony substance abusers. He is a described this same role this way: “One is receiving attention precisely because it thinks of justice in the context of deter- Association of Drug Court Professionals, rents, of retribution. But too infrequent- and he is past president of the Michigan ly is justice looked at as a form of heal- Association of Drug Court Professionals. 9. TRIAL COURT PERFORMANCE STANDARDS WITH COMMENTARY, supra 10. Judith S. Kaye, Making the Case for Hands On Courts, NEWSWEEK, Oct. 11, 1999, at 13 [available on the Web at h t t p : / / w w w. n e w s w e e k . c o m / n w - s r v / p r i n t e d / u s / 16. David Wexler, Therapeutic Jurisprudence and the Culture of dept/my/my0115_1.htm (last visited March 26, 2000)].
Critique, 10 J. CONTEMP. LEGAL ISSUES 263 (1999).
11. Richard Goldston, speech given at the Holocaust Museum, 17. Zimmerman, supra note 12, at 110 (“We can choose to be the agents of innovation, or the subjects of innovation.”).
12. Michael Zimmerman, A New Approach to Court Reform, 82 • David Rottman for assisting with the editing chores for this special issue• David Wexler and Bruce Winick for helping to identify potential authors for this issue and otherwise lending their encouragement • Lynn Grimes for helping coordinate all of the people and paper 6 Court Review - Spring 2000


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