Therapeutic Jurisprudence in Swift and Certain Probation

Abstract

While the manifestation of therapeutic jurisprudence in specialty courts such as mental health and drug courts has received attention in the literature, there is little scholarship on the manifestation and function of therapeutic jurisprudence in probation settings. This study examines therapeutic jurisprudence in the context of a HOPE-based probation program called Swift and Certain probation. We observed status hearings and surveyed participants on their perceptions of the program for over 2 years. We found that therapeutic jurisprudence was manifested in the judge’s liberal use of praise during status hearings, which appeared to be an important part of participants’ positive perceptions of him and of procedural justice more generally. It was also manifested, though less directly, in interactions and relationships participants have with their probation officers. We conclude with suggestions for the implementation of therapeutic justice practices in Swift and Certain and similar probation programs.

Swift and certain probation: Assessing fidelity to the HOPE model

“…We also surveyed participants on their perceptions of certainty of sanctions. The details of the survey, which is more wide ranging than certainty of sanctions, are provided in (Frailing et al, 2020)…”

“…We were able to assess continuum of treatment (element 15 in DuPont et al, 2015) in a variety of ways, including periodic reviews of participants’ files, which contained information on drug tests, sanctions, and required conditions of probation such as drug treatment, cognitive behavioral therapy, and employment and educational assistance services. Continuum of treatment was also evident in the liberal use of praise and deliberate communication to participants that he and the other SAC staff cared about them and were committed to providing the support necessary for them to succeed in the SAC program (see especially Frailing et al, 2020, as well as Frailing et al, 2020 for a thorough description of these status hearings).…”

“…The implementation with fidelity to the HOPE model in the SAC program may be part of the reason there is evidence that the program is meetings its goals. Frailing et al (2020) found progress toward the stated goals of SAC in their process evaluation of the program. There was a reduction in drug and alcohol dependence among participants as measured by fewer positive drug tests over the course enrollment, there was a reduction in prison overcrowding resulting from the SAC participants, who as noted were at risk of immediate incarceration for noncompliance with traditional probation, avoiding nearly 9,000 incarceration days.…”

Nonjudicial Influence on Family Violence Court Cases

“…Professionals often fear the child will be harmed by such participation if they do not get their stated wishes, although those who have been implementing new laws of child participation report difficulties in some cases, but not actual harm (Gal & Duramy, 2015). Having a voice seems to be most important (on this point, see Burke, this issue; Frailing et al, this issue). A third argument often considered is the concern that children should be protected from the confrontational nature of participation including their ability to be manipulated by parents or other authority figures.…”

“But I Ain’t a Judge:” The Therapeutic Jurisprudence Implications of the Use of Nonjudicial Officers in Criminal Justice Cases

“…However, with the important exception of the work done by Professor Lorana Bartels, writing about the HOPE probation program in Hawaii (Bartels, 2016, 2019; see also Frailing et al, this issue) there is virtually none on the sort of interstitial, quasijudicial roles I discuss here (but see Wexler, 2011, p. 38, quoting Justice Kevin Bell, former President of the Victorian [Australia] Civil and Administrative Tribunal, on how the role of the judge in such cases is “interstitial”).…”