An Integrated Theory of Specialized Court Programs

Abstract

Specialized court programs have expanded beyond drug treatment to address issues such as mental health, domestic violence, veterans, and reentry through evidenced-based treatment. Although these programs have been successful at reducing recidivism, their lack of an overarching theoretical framework has limited generalizability to other offender populations and contexts. The purpose of this article is to present an integrated model for specialized court programs that incorporates therapeutic jurisprudence and procedural justice concepts. We argue that although therapeutic jurisprudence offers guiding principles, it lacks the ability to explain how these programs work to change offender behavior and perceptions. Procedural justice can provide this missing piece of the puzzle in understanding the effectiveness of specialized courts. We conclude with a discussion of directions for future research and practice that is guided by this integrated perspective.

Keywords

procedural justice therapeutic jurisprudence specialized courts legal compliance rehabilitation

The first specialized court program was established in 1989 and focused on the need to address the large number of drug-related offenses entering the criminal justice system (Goldkamp, 1994; Goldkamp & Weiland, 1993). This drug court program presented an alternative to incarceration for drug crimes and offered a way for courts to become more directly involved in the treatment of offenders. Over the past two decades, specialized court programs have expanded greatly in both number and variety (Berman & Feinblatt, 2001; Castellano, 2011; Lurigio, 2008). These programs have moved beyond drug treatment to address issues relating to mental health, veterans, reentry, and domestic violence. This expansion, however, has continued without much consideration of whether the drug court model is appropriate to these other populations.

There is a growing body of literature on the benefits of continuity of treatment, which provides a convincing argument for an increased focus on the therapeutic potential of the court system, with the goal of facilitating desistance (Arrigo, 2014; Fox, 2015; Holtfreter & Wattanaporn, 2014). The specialized court movement offers a guiding paradigm for the court system to consider their role in the rehabilitation of offenders. Unfortunately, this movement has progressed without a specific theoretical framework to explain why some programs are effective and others are not (e.g., Aubin, 2009; Belenko, 2001; Mitchell, Wilson, Eggers, & MacKenzie, 2012; Wilson, Mitchell, & MacKenzie, 2006). Two parallel theoretical paradigms—therapeutic jurisprudence and procedural justice—may provide a conceptual rationale to explain exactly why specialized court programs may work to promote offender compliance in a court context and ultimately, rehabilitation.

The purpose of this article is to present an integrated theoretical model for specialized court programs that is also linked to the continued treatment of offenders under correctional supervision. Specifically, we will explore the application of procedural justice and legitimacy to specialized courts and contrast the underlying assumptions of therapeutic jurisprudence to identify commonalities between these two perspectives. In doing so, we hope to demonstrate the need to integrate these two theories into a model that guides research and practice for the continuity of care within a variety of criminal justice system contexts (e.g., courts and corrections).

Moving Beyond Drug Courts: The Need for a Specialized Court Framework

In 1989, the first drug court program was established in Miami-Dade county, Florida, with the intent of bridging the gap between drug treatment and the criminal justice system (King & Pasquarella, 2009). As of 2012, there were more than 2,350 drug court programs nation-wide (Office of Justice Programs Drug Court Clearinghouse and Technical Assistance Project, 2012). The purpose of this court program was to provide long-term, court-supervised treatment to offenders with drug-related problems (Belenko, 2001). Despite a long history of criminal justice–based treatment efforts for drug users, the underlying philosophy, structure, and design of drug court programs represented a significant shift in jurisprudence and treatment in the court context (Belenko, 2001). In fact, as Belenko (2001) noted, the core elements of drug court programs—including a non-adversarial structure, team decision-making, the use of non-incarcerative sanctions and incentives, and judicial involvement and interactions with offenders—mark a substantial departure from the traditional criminal court process. This drug court model has been replicated throughout the United States and even internationally.

Drug court programs are the only form of specialized court programs that have been assessed through meta-analytic techniques. Recently, there have been two systematic reviews of drug court programs (Mitchell et al., 2012; Shaffer, 2011). Shaffer (2011) assessed the effectiveness of drug courts by examining the moderating influence of programmatic and non-programmatic characteristics on effectiveness. In 2012, Mitchell and associates provided another meta-analysis of drug courts, examining the different effects of traditional and non-traditional programs, including driving while intoxicated (DWI) courts and juvenile drug courts. Overall, both these empirical assessments found that drug court programs have at least a moderate effect on reductions in recidivism. Both reviews identified the lack of a theoretical framework as a continued challenge for these types of programs. Building on the framework developed by Longshore and associates (2001), Shaffer’s (2011) assessment applied concepts of both therapeutic jurisprudence and effective intervention strategies to the drug court model; however, drug courts and other specialized courts were “not designed with these principles in mind” (p. 496). Longshore’s framework was developed solely for drug court programs and may not represent a solid foundation for the explanation of all forms of specialized court programs. In addition, Longshore’s simple conceptual framework may explain which structural or processual characteristics (e.g., program intensity, predictability, rehabilitation emphasis) explain variation in drug court success, but cannot provide an explanation as to why these characteristics matter.

The drug court model has been adapted and applied to a wide variety of offenses and offender populations. While drug courts remain the most common, there are now programs for cases involving mental illness, domestic violence, juveniles, homelessness, veterans, among others (Castellano, 2011; Mulvey, 2012). The first specialized court to branch off the drug court movement was with the development of mental health courts in 1997 (Steadman, Davidson, & Brown, 2001). Since that time, the federal government has provided funding for many other forms of specialized programs (McLeod, 2011). Although the drug court model has shown to be relatively successful in reducing recidivism for drug offenders, there has been little empirical evidence as to whether this model can successfully be adapted to other offenses or offender populations. In addition, the lack of a theoretical consensus for the model leaves the underlying principles and assumptions open for individualized interpretation. To assess the appropriateness and effectiveness of adapting the drug court model to other specialized populations or offenses, it is necessary to understand the theoretical underpinnings driving the model’s success. Although there have been numerous attempts to establish a conceptual model for drug courts (see Goldkamp, 1999; Gottfredson, Kearley, Najaka, & Rocha, 2007; Longshore et al., 2001), perhaps the most common theoretical application is therapeutic jurisprudence (Shaffer, 2011). In addition, most of these proposed frameworks neglect the role of procedural justice in the success of specialized court programs. As we will demonstrate below, therapeutic jurisprudence and procedural justice are two complementary theories that may explain why some specialized court programs have been successful at rehabilitating offenders.

Therapeutic Jurisprudence

Although developed around the same time, the principles of therapeutic jurisprudence emerged separately from the specialized court movement. First introduced by Wexler (1990), therapeutic jurisprudence is defined as “the study of the role of the law as a therapeutic agent” (p. 43). More specifically, it is seen as an approach to law that attempts to “reshape law and legal processes in ways that can improve the psychological functioning and emotional well-being of those affected” (Winick & Wexler, 2003, p. 479). This approach to law is consistent with a continuum of care philosophy and implementation of wraparound programs and services designed to facilitate successful offender reentry (Fox, 2015; Holtfreter & Wattanaporn, 2014). In essence, therapeutic jurisprudence requires legal actors to have a cognitive awareness of how their actions and words affect others and can either promote or hinder rehabilitative efforts.

In the context of therapeutic jurisprudence, the emphasis is on understanding the impact and consequences of the law, legal process, and legal actors on the well-being of persons affected by the law (Wexler, 2000). Wexler (2000) argued that one of the primary goals of this perspective is to apply and incorporate insights and findings from the psychology, criminology, and social work literature to the legal system. In addition, Wexler recognizes the importance of the role of the judge in bringing evidence-based techniques into the legal process.

Specialized court programs are commonly seen as an appropriate application of the principles of therapeutic jurisprudence (see Hora, Schma, & Rosenthal, 1998; Winick, 2013; Winick & Wexler, 2001). The principles of therapeutic jurisprudence as applied to specialized courts include ongoing judicial intervention, close monitoring of treatment services, multidisciplinary involvement, and collaboration with community services (Senjo & Leip, 2001a; Winick & Wexler, 2001). Noted by Winick and Wexler (2001), therapeutic jurisprudence emphasizes how judges and other court actors’ roles have inevitable consequences for the people with whom they interact. The interactions between the judge and the defendant are central to the functioning of specialized court programs and therefore, the role the judge embodies may have a significant effect on offender behavior (Winick & Wexler, 2001).

Although therapeutic jurisprudence has been applied to the discussion of specialized courts for a number of years (Longshore et al., 2001; Shaffer, 2011), there has been limited direct empirical research assessing its appropriate application to this context. In fact, there has been little research examining how exactly specialized court programs work to reduce offending (Rossman et al., 2011). The only studies to directly test therapeutic jurisprudence in the context of specialized court programs were by Senjo and Leip in 2001. They found that supportive judicial comments were positively associated with reducing positive drug test outcomes (Senjo & Leip, 2001a). Within that same year, these authors also assessed the effects of therapeutic jurisprudence on program completion. They once again found that supportive comments by judges increased the likelihood of program completion for drug court participants compared with adversarial or critical comments (Senjo & Leip, 2001b).

Given that specialized courts are often closely linked to other community programs and services for offenders (e.g., mental health treatment), it is perhaps no surprise that therapeutic jurisprudence principles have also been hypothesized to promote desistance from crime (Birgden, 2015). Therapeutic jurisprudence places such a strong emphasis on how legal actors can directly influence rehabilitation of offenders that it seems a natural companion to procedural justice and judicial legitimacy. In the section that follows, we first illustrate the importance of the role of procedural justice within the specialized court context, especially as it pertains to the group engagement model. To bridge the theoretical gap between court and correctional contexts, we also discuss applications of procedural justice in institutional corrections settings (e.g., Beijersbergen, Dirkzwager, Eichelsheim, Van der Laan, & Nieuwbeerta, 2015; Reisig & Mesko, 2009) and review the few tests of procedural justice in specialized courts.

Procedural Justice

Given the origins of procedural justice in the legal setting, extending this perspective to the context of specialized court processes would seem a natural fit. Procedural justice concepts such as legitimacy of authority, process fairness, and group engagement all extend nicely to the specialized court model and provide possible contributions to the study of specialized courts. These theoretical foundations add explanatory power to the principles of therapeutic jurisprudence as described above.

Organizational justice, the overarching paradigm of procedural justice, incorporates both the fairness of outcomes and the fairness of the procedures used to determine those outcomes (Colquitt, Conlon, Wesson, Porter, & Ng, 2001). Specifically, scholars of organizational justice identify distributive, procedural, and interactional justice as the three main components of organizational justice. Procedural justice in particular originated as a study of the legal process and “combined the study of process with an interest in the psychology of justice to initiate the study of procedural justice” (Lind & Tyler, 1988, p. 5). Theories of procedural justice since this time have continued to emphasize the role of perceptions of how decisions are made in influencing compliance and perceptions of fairness (see Leventhal, 1976; Lind & Tyler, 1988).

Thibaut and Walker (1975) described their model of procedural justice in terms of decision control, suggesting that individual reactions are related to their ability to control the outcome by controlling the process (Tyler, 2006). Therefore, these authors contend that the primary value in having control of the process is the perception of influencing the outcome (Tyler, 2006). Tyler’s conceptualization of procedural justice, however, posits that people find value in more non-instrumental, or normative, aspects of procedural justice rather than the need to directly influence the outcome. According to Tyler (2006), people value the opportunity to state their case and provide their views to a decision maker, regardless of whether those will influence the outcome.

In 1985, Tyler found support for his conceptualization of procedural justice (Tyler, Rasinski, & Spodick, 1985). Specifically, Tyler and associates found that the opportunity to express views and opinions, even with low levels of control over the decision itself, heightened feelings of justice and leadership endorsement. Subsequently, Lind and Tyler (1988) reemphasized this importance of procedural justice in encounters with authority figures. Specifically, they recognized the importance of being heard by a decision maker, being treated with dignity and respect, and perceived concern of authority figures on individual perceptions of procedural justice. As a general framework for understanding judgments of fair treatment, this perspective offers insights into decision making by court officials as well as correctional authorities (e.g., probation officers in the community).

Group Engagement Model

Lind and Tyler (1988) proposed a group-value model of procedural justice, which posits that people are concerned about social relationships with authorities over the long term. In essence, this model suggests that individuals are concerned with three procedural issues: the neutrality of the decision procedure, trust in the authority, and evidence about social standing (Lind & Tyler, 1988). The basic underlying assumption of this model is that people value their membership in a social group and that this membership identification is rewarding to the individual.

The group-value model was later expanded by Tyler and Blader (2003) into the group engagement model of procedural justice. This model combines the group-value model (Lind & Tyler, 1988) with a relational model of authority (Tyler, 1997) to provide a more expansive explanation of how procedural justice shapes cooperation within groups (Tyler & Lind, 1992). This proposed model of group engagement attempts to provide an understanding of why people involve themselves and participate in groups and what they expect to receive out of this involvement (Tyler & Blader, 2003). According to the group engagement model, cooperation is classified into two classes: mandatory and discretionary. Mandatory cooperation is motivated strongly by incentives and sanctions, whereas discretionary cooperation is motivated by internal motivations, such as an individual’s attitudes and values (Tyler & Blader, 2003). Tyler and Blader (2003) argued that groups benefit most when individual engagement is based on internal motivations rather than being dependent on incentives and sanctions.

A main hypothesis of the group engagement model is that individuals engage in the group because they use the feedback received to develop and maintain personal identities (Tyler & Blader, 2003). Building on the propositions of procedural justice, the group engagement model argues that people are most strongly influenced by the fairness of the group’s procedures (Lind & Tyler, 1988; Tyler & Blader, 2003). According to Tyler, Degoey, and Smith (1996), the group procedures matter because they communicate messages about membership in that group. Fair group procedures communicate with members whether individuals are respected within the group and whether they should feel pride in the group as a whole (Tyler et al., 1996). These messages are generally conveyed through authority members. Tyler also suggests that authority figures in a group context can draw legitimacy from their social relationships within the group (Tyler, 1997). It should be apparent that the group engagement model of procedural justice is relevant to the context of specialized court programs. In essence, these programs use a group-based treatment model (Berman & Gulick, 2003).

Legitimacy

A strong component of perceived procedural fairness is in the subjective judgments about the fairness in the ways that the criminal justice actors exercise their authority (Tyler, 2006, 2003; Tyler & Huo, 2002). Legitimacy has long been an important concern in sociological research, particularly in the examination of group or organizational behavior. Dating back to the work of Max Weber (see Weber, 1947), social scientists have been examining the concept of legitimacy, conceptualized as the perceived obligation to obey authority, regardless of the personal gains or losses associated with it. Social psychologists French and Raven (1959) differentiated between voluntary compliance with decisions of authorities and obedience that result from coercion. Moreover, these scholars distinguish legitimate power from that which is derived from positive or negative outcomes (French & Raven, 1959). In contrast to coercive or reward power, legitimacy “always facilitates and is often crucial for the effective exercise of authority” (Tyler & Lind, 1992, p. 118).

Most empirical work on legitimacy has focused on the attachment to a political or legal system, rather than directly assessing the perceived obligation to obey the law (Tyler, 2006). According to Tyler (2006), legitimacy can reside either in the individual holding a place of authority or in an entire institution. A person may choose to comply with the law because they view the legal authority as having the “legitimate right to dictate their behavior” (Tyler, 2006, p. 25). Easton (1958) defined authority as the legitimacy gained when members of society feel that they should voluntarily obey the commands of the authorities. Legitimacy, however, may also be found within the institution itself that enhances the publics’ will to comply, even if the individual does not necessarily support the individual(s) in positions of authority (Tyler, 2006).

Although there has been substantial theoretical discussion regarding the role of legitimacy and compliance with the law, there has been a relative lack of empirical research testing this relationship (Tyler, 2006). Furthermore, despite the origins of procedural justice in case processing, there has been even less empirical examination of the direct influence of perceptions of judicial legitimacy on the compliance of offenders involved in the court system. Casper, Tyler, and Fisher (1988) were the first to empirically assess procedural justice and legitimacy within a felony court context. Their study confirmed that even when the distributive outcomes have severe consequences, such as long incarceration sentences, procedural justice matters in offender perceptions of the court process.

Procedural Justice in Corrections

Recently, the literature on procedural justice and legitimacy has expanded to include the correctional context (Beijersbergen et al., 2015; Jackson et al. 2010; Reisig & Mesko, 2009). In the institutional setting, inmate compliance is a necessary condition for the successful management of correctional facilities. In the context of a prison, legitimacy includes inmates’ acceptance of prison officials’ authority. According to Tyler (2007), fairness of treatment (i.e., the manner in which authority is actually carried out) shapes evaluations of procedural justice. Reisig and Mesko (2009) were among the first to empirically test these ideas in a prison context. Their study of a Slovene prison revealed that inmates who viewed prison officials’ use of authority as procedurally just were significantly less likely to engage in misconduct. Inmates’ procedural justice perceptions were also associated with fewer rule violations.

Similarly, Beijersbergen and colleagues (2015) used a longitudinal design to test the effects of inmates’ initial procedural justice perceptions on subsequent misconduct in a Dutch correctional facility. They also found support for Tyler’s arguments. Beijersbergen, Dirkzwager, and Nieuwbeerta (2016) have expanded this framework to examine whether procedurally just treatment during incarceration extends beyond the prison setting itself. Their study of 1,241 Dutch offenders revealed that inmates who felt that they were treated in a procedurally just manner while incarcerated were less likely to be reconvicted 18 months after release. This study is promising in that it confirms what correctional reentry researchers have long acknowledged: that successful reintegration starts in prison (Holtfreter & Wattanaporn, 2014). Taken with the applications of procedural justice in other legal contexts (e.g., policing), the research to date underscores the utility of this perspective for explaining offender compliance, rehabilitation, and other positive behavioral outcomes throughout the criminal justice system. In the section that follows, we describe applications of procedural justice to specialized courts before outlining the ways in which this perspective can be linked to therapeutic jurisprudence to provide a more complete and testable theoretical framework for understanding specialized courts.

Applications of Procedural Justice to Specialized Courts

As shown in Table 1, there have only been seven studies that directly test procedural justice concepts in a specialized court context. Many of these studies used interviews with court participants and all but two relied on simple statistical techniques, such as means and percentages. The first of these studies, by Poythress, Petrila, McGaha, and Boothroyd (2002), examined procedural justice concepts primarily related to the role of the judge in a mental health court setting. These authors found that the mental health court program produced higher scores on the procedural justice measures used than the comparison group in a traditional court setting.

Table 1:

All Procedural Justice Evaluations of Specialized Courts

Article	Court Type	PJ Concepts Used
Poythress, Petrila, McGaha, and Boothroyd (2002)	MHC	PJ items:
		1. At court today, did you have enough opportunity to tell the judge what you think he or she needed to hear about your personal and legal situation? (“voice”)
		2. At court today, did the judge seem genuinely interested in you as a person?
		3. At court today, did the judge treat you respectfully?
		4. At court today, did the judge treat you fairly?
		5. Are you satisfied with how the judge treated you and death with your case today?
Frazer (2006)	CC	Interpersonal treatment:
		1. The judge treated you fairly
		2. Your lawyer listened to you
		3. The prosecutor treated you with respect
		4. Your case today was handled fairly by the court
		Predicting perceptions of court fairness (outcome measures):
		1. Your case today was handled fairly by the court
		2. Your legal rights were taken into account
		3. You were treated the way you deserved in court today
		4. The outcome of your case was fair
Gover, Brank, and MacDonald (2007)	DVC	Overall satisfaction with court process:
		1. What was your overall impression of the way your case was handled by the DVC?
		2. How would you rate the overall quality and professionalism of the court?
		3. How was the waiting time to hear your case?Voice:
		1. Do you feel that the court gave you adequate time to explain your side of the story?
		2. Do you feel the judge was concerned about your side of the story?Fairness, justice, and respect:
		1. Do you think that the outcome in your case was fair/just?
		2. Do you think that you were treated with respect and dignity by the court?
Gottfredson, Kearley, Najaka, and Rocha (2007)	DTC	PJ scale (13 items) representing:
		1. Representation
		2. Consistency
		3. Impartiality
		4. Accuracy
		5. Correctability
		6. Ethicality
McIvor (2009)	DTC	PJ items:
		1. Judicial involvement
		2. Ethicality
		3. Effort to be fair4. Representation
Wales, Hiday, and Ray (2010)	MHC	PJ in decision to participate:
		1. Chance to say whether I wanted to go to MHC
		2. Got to say what I wanted about going to MHC
		3. Opinion about going to MHC didn’t matter
		4. No one seemed to want to know whether I wanted to come into MHC
		PJ with judge responses:
		1. Did you have opportunity to tell judge what you think about personal and legal situation?
		2. Does judge seem genuinely interested in you as a person?
		3. Does judge treat you respectfully?
		4. Does judge treat you fairly?
Canada and Watson (2012)	MHC	Perceptions of PJ:
		1. Opportunity to tell MHC staff information about personal/legal situation?
		2. MHC staff seem genuinely interested in you as a person?
		3. MHC staff treat you with respect?
		4. MHC staff treat you fairly?
		5. Satisfied with how MHC staff treat you and deal with your case?
		6. Satisfied with the decisions made about your case?Qualitative questions of PJ:
		1. How do you feel about outcome of your case and probation?
		2. Talk about opportunities you have had to share about your personal situation?
		3. Do you think you have been treated pretty fairly since you started working with MHC staff?4. Can you give me examples?

Note. PJ = procedural justice; MHC = Mental Health Court; CC = Community Court; DVC = Domestic Violence Court; DTC = Drug Treatment Court.

The study conducted by Frazer (2006) provided the first empirically rigorous assessment of procedural justice in a specialized court context. Frazer assessed a variety of procedural justice–related characteristics on defendants’ overall perception of fairness of the court of those involved in a community court program compared with those in a traditional court setting. Within his study, Frazer included questions related to various court actors such as the judge, prosecutor, defense attorney, and court officers. These questions asked defendants to evaluate their perceptions of effective communication, treatment, and helpfulness of these court actors (Frazer, 2006). Nonetheless, the operationalization of procedural justice concepts departed from traditional measures. Specifically, Frazer used perceived fairness as the outcome measure, combining both procedural and outcome fairness into one dependent variable called “overall treatment.” In general, Frazer found that judicial factors were the best predictors of perceived overall fairness.

Although the Frazer study on the community court program provides the first multivariate assessment of procedural justice, there are limitations to this study. First, the author provides no bivariate correlations between the independent and dependent variables. Given the dependent variable of perceived fairness and the independent variables used in this study, concerns of multicollinearity cannot be ruled out. Put simply, it is possible that the variables used to predict fairness are actually measuring similar concepts. An example of this problem can be found when reviewing the individual items used in the judicial independent variables and the outcome variables. Specifically, one item used in the judicial evaluation is “the judge treated you fairly,” while one of the variables used in the outcome scale is “your case today was handled fairly by the court.” Without providing the bivariate correlations between these two items, it is impossible to tell whether these two items are, in actuality, measuring the same construct (see Reisig, Bratton, & Gertz, 2007). A second potential limitation to this study is the inequality of the comparison group used. Frazer notes that there are statistical differences in demographic and case characteristics between the two samples, which provide problems when trying to compare outcomes. Therefore, it may be possible that differences in outcomes based on these two samples are actually capturing differences in demographics and perhaps not participation in the community court program.

The only other empirically rigorous test of procedural justice in the context of specialized court programs was conducted in 2007 by Gottfredson and associates. In this study, the authors assessed both the direct and mediating effects of procedural justice and social control on drug court participants. This study used an experimental design to randomly assign defendants to the drug court program or for traditional court adjudication (Gottfredson et al., 2007). Unlike the Frazer (2006) study, Gottfredson and colleagues used recidivism measures as their outcome, including general offending and repeated drug offending. This is the only study to date to test the effects of procedural justice on recidivism in specialized court contexts. In addition, this study used a 10-item scale for procedural justice. Unfortunately, items used in this scale included distributive justice items, such as fairness in sentence received, thus making isolation of procedural justice perceptions more difficult (see Reisig et al., 2007, for discussion on measurement of procedural justice concepts).

Although there are some limitations to the evaluation provided by Gottfredson and associates, this study represents a rather sophisticated test of procedural justice in the specialized court context. Using structural equation modeling, these authors tested both the direct effects and indirect effects of two theoretical perspectives (Gottfredson et al., 2007). Their findings suggest that both social control and procedural justice significantly influence recidivism. Specifically, they found that social control reduced drug use frequency and procedural justice reduced overall crime. In addition, they found that procedural justice acted as a moderator in the relationship between number of judicial hearings attended and reduction in crime. This finding provides additional support for the application of procedural justice to the explanation as to why specialized court programs work to reduce recidivism.

The work provided by Gottfredson and colleagues (2007), Frazer (2006), and the five other studies (Canada & Watson, 2012; Gover, Brank, & MacDonald, 2007; McIvor, 2009; Poythress et al., 2002; Wales, Hiday, & Ray, 2010) that assess procedural justice in these court programs demonstrate the need for more empirically rigorous analyses within this setting. As shown in Table 1, the limited body of research on procedural justice in a specialized court context has used inconsistent measures of procedural justice and some confound distributive and procedural justice items in their studies. Future analyses of procedural justice within the specialized court context should attempt to include systematic sampling with matched comparison groups and valid measures of procedural justice adapted from prior literature.

Integrating Therapeutic Jurisprudence and Procedural Justice

Given the similarities between the therapeutic jurisprudence and procedural justice, it is surprising to find that there has been limited consideration in connecting the two perspectives. Winick and Wexler, among other scholars, identify specialized courts as an appropriate application of therapeutic jurisprudence principles (Boldt & Singer, 2006; Hora et al., 1998; Nolan, 2003; Rottman & Casey, 1999; Senjo & Leip, 2001a, 2001b; Winick & Wexler, 2001). Some have even suggested the application of this model to the traditional court process (Dorf & Fagan, 2003; Jones, 2012). According to these scholars, the therapeutic jurisprudence approach as applied to specialized courts uses the legal process, and the role of the judge, in particular, to achieve the overall goal of offender rehabilitation. Although the therapeutic jurisprudence approach offers a set of organizing principles for these programs, they offer little explanation as to why these principles work to reduce recidivism (McIvor, 2009). Just as social learning theory provides the underlying theoretical framework for the principles of effective intervention strategies (Lipsey & Cullen, 2007; Shaffer, 2011; Smith, Gendreau, & Swartz, 2009), procedural justice may provide an appropriate theoretical explanation for why principles of therapeutic jurisprudence may work in specialized court programs. We propose that together these individual frameworks can build a more comprehensive guide to the expansion of these programs. In Figure 1, we present a model that demonstrates how these two perspectives, along with the principles of effective intervention, can work to increase compliance in specialized courts and ultimately improve offender rehabilitation. This model was developed using an “end-to-end” or sequential process of integration (see Bernard & Snipes, 1996; Kubrin, Stucky, & Krohn, 2009; Liska, Krohn, & Messner, 1989), which suggests that procedural justice and legitimacy may partially explain the relationship between the principles of therapeutic jurisprudence and successful program adherence, compliance, and reductions in recidivism.

Figure 1:

Integrated Model of Specialized Courts

The first portion of our model includes the components of therapeutic jurisprudence as identified by Winick and Wexler (2001). These include (1) ongoing judicial intervention, (2) close monitoring of and immediate response to behavior, (3) the integration of treatment services with judicial case processing, (4) multidisciplinary involvement, and (5) collaboration with community-based and government organizations. These five principles underscore the importance of the judicial role and the legal process within these programs. Moreover, we argue that they are closely aligned with the principles of effective intervention that have successfully guided community corrections policies and practices for some time (National Institute of Corrections, 2004). For example, in our integrated model, the organizational collaboration component (Number 5 listed above) is captured through the principle of effective intervention of community support. As shown in Figure 1, the remaining seven principles (risk/needs assessment, target interventions, positive reinforcement, cognitive-behavioral therapy-based programming, measuring outcomes, enhanced motivation, and feedback) are also compatible with the key components of therapeutic jurisprudence. Given the demonstrated links between evidence-based principles and positive outcomes (e.g., safer communities), it follows that incorporating these principles into all types of offender interactions (including specialized court programs) would ultimately facilitate compliance.

The second step in our model suggests that through the application of these therapeutic jurisprudence principles, specialized courts can increase both judicial legitimacy and procedural justice of the court system. Tyler (2006) offered methods by which it is possible to measure legitimacy, including (a) representation, (b) consistency, (c) impartiality, (d) quality of decisions, (e) correctability, and (f) ethicality. Some of these measures have been used in the studies of specialized courts as presented in Table 1, particularly the concept of representation or voice. In essence, our model suggests that procedural justice and legitimacy may partially mediate the influences of therapeutic jurisprudence.

According to Winick and Wexler (2003), relationships and processes are more important within a therapeutic setting than the role of sanctions. In addition, Winick (2002) highlighted the important role of judges and other legal actors in therapeutic jurisprudence. Specifically, he suggests that the role of judges can have specific consequences for the psychological well-being of offenders. Put simply, Winick identifies the judge–defendant interaction as a central component of the drug treatment court paradigm (Winick, 2002). Given the importance of this role, Winick and Wexler (2001) stated that judges

need to understand the psychology of procedural justice, which teaches that people appearing in court experience greater satisfaction and comply more willingly with court orders when they are given a sense of voice and validation and treated with dignity and respect. (p. 482)

Offering opportunity for individuals to express their opinions and views, or voice as it is commonly referred, is also identified as an important component of procedural justice (Brockner et al., 2001).

This discussion of therapeutic jurisprudence in the context of specialized courts makes clear connections to the principle assumptions of procedural justice. Recently, scholars have seen specialized court programs as a possible new forum for research on procedural justice (Rottman, 2007). Although the similarities in the assumptions underlying therapeutic jurisprudence and procedural justice may seem apparent, these perspectives are usually discussed as two separate models in evaluations of specialized courts (P. Casey & Rottman, 2005; Frazer, 2006; Poythress et al., 2002). Oftentimes, these evaluations are atheoretical altogether (see Deschenes, Turner, & Greenwood, 1995; Goldkamp, White, & Robinson, 2001; Gottfredson & Exum, 2002; Marlowe, Festinger, Lee, Dugosh, & Benasutti, 2006; Spelman, 2003).

Some scholars have attempted to bridge the gap between principles of therapeutic jurisprudence and procedural justice (McIvor, 2009; Wiener, Winick, Georges, & Castro, 2010). For instance, McIvor (2009) used qualitative data to explore the dual roles of therapeutic jurisprudence and procedural justice in a Scottish drug court program. In fact, McIvor initially proposed that procedural justice concepts provide a theoretical rationale for why drug courts, and principles of therapeutic jurisprudence, might contribute to successful rehabilitation of offenders. McIvor, however, did not articulate specifically how these two perspectives might interact in this process.

Other scholars have attempted to provide a more comprehensive and testable theory of specialized court programs. Specifically, Wiener and associates (2010) proposed a therapeutic jurisprudence model of specialized courts using aspects of motivational interviewing and reintegrative shaming to influence whether an offender accepts and engages in treatment or not. Although this model does include procedural justice, it neglects the role of judicial legitimacy and how the principles of effective intervention might influence program success at rehabilitating offenders. In addition, this model includes some, but not all, aspects identified as producing a therapeutic jurisprudence program. For example, although motivational interviewing implies supportive interactions between judges and defendants, their model does not indicate how the non-adversarial, team-based approach or the use of clear rules and structured goals, might influence offender compliance.

We believe that our model provides a concise and testable model that integrates aspects of therapeutic jurisprudence, procedural justice, and principles of effective intervention—all of which are argued to be important to the success of specialized court programs. Given the broadening of these programs and the expansion in the populations that it serves, it is important to provide theoretical backing as to why this type of program will be successful in reducing recidivism for special populations (e.g., those with mental health needs, veterans, or drug-involved offenders) and may even be effective at rehabilitating general offender populations. Procedural justice has been shown to have such an effect on reducing general criminal behaviors for drug court participants (Gottfredson et al., 2007). Therefore, we implore future research to examine the role of procedural justice and therapeutic jurisprudence within the specialized court context.

Conclusion and Future Research Directions

This review has clearly demonstrated the continued need for theoretically informed, evidence-based evaluations of specialized court programs. Along these lines, research should explore the relationship between therapeutic jurisprudence and procedural justice in the court program context. Research assessing the various components of the drug court model has recognized the importance of the judicial role in participant compliance. This research supports the concepts outlined in Tyler’s (2006) legitimacy framework. Future work should apply Tyler’s procedural justice and legitimacy definitions more directly to the role of judges in this particular context.

We focused on prior research that directly examined therapeutic jurisprudence and procedural justice within the specialized court context; however, it is important to note that work indirectly applying these perspectives also supports this connection. For example, multiple studies have identified the role of the judge to be vital in specialized court programs (Goldkamp et al., 2001; Johnson, Hubbard, & Latessa, 2000; Marlowe et al., 2006; Taylor, 2012). Goldkamp et al. (2001) found that higher levels of contact with the same judge reduced recidivism in drug courts. Future research should continue to study the role of judges, specifically judicial legitimacy, and its effect on offender compliance.

As is often the case, theories are developed without consideration of possible policy or program implications. Criminological theorists are predominately concerned with explaining offender behavior, often without considering how those explanations might influence actions within the criminal justice system. Likewise, many programs and policies are created without reflection of criminological theory, resulting in wide variation of effectiveness and little guidance for replication of promising programs. As the current study demonstrated, specialized court programs offer an opportunity for researchers to evaluate the outcomes of key theoretical assumptions drawn from procedural justice and therapeutic jurisprudence perspectives.

Many of the current evaluations of specialized court programs fail to explore the processes or mechanisms between the policy intentions and operational outcomes (Stinchcomb, 2010). The majority of studies on specialized courts focus exclusively on the outcome of recidivism while ignoring issues of implementation and operation. Although this has changed somewhat recently (Shaffer, 2011), there is still a need for research exploring how and, most particularly, why some specialized court programs work and others do not. The direct application of theory to a rehabilitative program can provide not only justification for its effectiveness but also guide future development of programs and policies. Drug court programs developed with a lack of theoretical explanation to explain why it would be expected to be more effective than the traditional court model. This leads to problems when trying to replicate this program in other jurisdictions or with other populations. While this problem has been improved with the guidance of principles such as therapeutic jurisprudence and effective intervention strategies, the application of procedural justice, legitimacy, and the group engagement model will provide additional strength to these programs and practices.

There has been some limited discussion on the possibility that the specialized court model may actually face a crisis of legitimacy (T. Casey, 2004). Timothy T. Casey (2004) suggested that the innovative nature of the new specialized court movement will attract judges that are naturally charismatic and effective leaders. However, once the newness of the program wears, these judges might be replaced with different judges that do not hold these characteristics, which will lead to an impending crisis of legitimacy (T. Casey, 2004). This author argues that without a rational basis for their authority, the court’s authority will deteriorate. While offering few solutions for this crisis, T. Casey does highlight the necessity for a theoretical framework and justification for specialized court practices, particularly regarding the legitimacy of the judge within this context.

Although there has been only limited research on the role of procedural justice and legitimacy in specialized court programs, the findings have been promising. The specialized court program model “increases opportunities for shared decision making and incorporate participants’ perspective for some decisions” (Canada & Watson, 2012, p. 225). Specialized court programs should continue to encourage policies and practices that promote these opportunities.

Although our integrated framework by design focused on specialized courts programs—a component of the criminal justice system in which integrated theory is clearly needed—it is important to note also that the framework we developed could also be applied to the entire system. For example, it seems reasonable to expect that perceptions of fairness by legal authorities at earlier stages of the correctional filter (e.g., arrest) would influence subsequent perceptions of treatment (e.g., court processing). Along these lines, the extant literature would benefit from longitudinal research designs that consider the extent to which offender perceptions of fair treatment in specialized courts influence subsequent post-conviction experiences in terms of perceptions of decision making as well as offender compliance in institutional and community corrections contexts. Such comprehensive research efforts would undoubtedly be challenging. In addition, scholars should consider using mediation analyses, structural equation modeling, or other forms of path analyses to evaluate the theoretical model we present.

In summary, beyond understanding whether specialized court programs work, it is important to understand the mechanisms and theoretical explanations for why they work. The therapeutic jurisprudence approach to these court programs offers guidance for understanding which mechanisms work, while procedural justice provides the explanation as to why these may work. Applying this integrated perspective to specialized court programs will continue to build our knowledge to uncover what components of specialized court programs work and for whom they might have the most impact. Procedural justice as a theoretical framework for specialized court programs can provide the groundwork needed to explain how a model originally designed for treatment of drug users can be applied to other populations of offenders, such as mental health, domestic violence, veterans, and others. In addition, this theoretical explanation can offer support for the continued expansion of specialized court programs to a more general population of offenders, similar to successful efforts in reentry and community court programs.

Footnotes

Kimberly A. Kaiser is a doctoral candidate in the School of Criminology and Criminal Justice at Arizona State University. Her research focuses on the role of procedural justice in offender reentry success, judicial decision-making, and reentry policy and practice. Her work has appeared in a number of peer-reviewed journals including Criminology & Public Policy.

Kristy Holtfreter is an associate professor and director of graduate programs in the School of Criminology and Criminal Justice at Arizona State University. She received her PhD from Michigan State University in 2004. Her work has appeared in a variety of scholarly journals, including Criminology, Justice Quarterly, Journal of Research in Crime & Delinquency, and Psychology, Crime, & Law.

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