ATS1423 Chap.8 Problem-Solving Courts and Restorative Justice
Problem-Solving Courts and Restorative Justice
Problem-Solving Courts and Restorative Justice studies alternatives inside and beside the court system. Therapeutic jurisprudence asks how law and court processes affect wellbeing, and it underpins drug, mental health, family violence and Indigenous sentencing courts that try to address the problems behind offending.
Restorative justice offers a different theory of justice, built around repairing harm with the people affected, and it can enter the system at diversion, at sentencing or after a custodial sentence. The readings on Indigenous sentencing courts and New Zealand's Rangatahi Courts, and the evidence on restorative programs, show what these approaches achieve and where they fall short.
The tutorial asks groups to research one specialist court, such as a drug court, a family violence court or the Koori Court, including when it began, what it hears and whether the evidence shows it meets its aims.
What this chapter covers
- 01
Therapeutic jurisprudence and its origins
- 02
Key elements of problem-solving courts
- 03
Drug, mental health and family violence courts
- 04
Indigenous sentencing courts in Australia
- 05
Rangatahi Courts in Aotearoa New Zealand
- 06
Restorative justice and its three entry points
- 07
Evidence and critiques of these alternatives
Worked example · free
Decide which alternative suits a case
- 1Note eligibility: Indigenous sentencing courts require a guilty plea or finding, which this case meets.
- 1A Koori Court hearing would bring Elders into a less formal sentencing conversation, though the magistrate still decides the sentence.
- 1A drug court would address the underlying dependence through treatment, testing and ongoing judicial case management.
- 1Restorative justice could support sentencing by bringing the victim and family together, with modest evidence on reoffending but strong evidence on satisfaction.
Key terms
- Problem-solving courts
- Specialist courts that address the underlying issues behind offending through judicial case management, a multidisciplinary team and community agencies.
- Indigenous sentencing courts
- Courts in which Elders and community members take part in sentencing Aboriginal and Torres Strait Islander people, in a less formal setting.
- Rangatahi Courts
- New Zealand youth courts, set up in 2008, that sit on a marae and monitor plans agreed at a family group conference.
- Victim-offender mediation
- A restorative process in which a victim and the person responsible meet, with a facilitator, to address the harm caused.
- Solution-focused courts
- A proposed name for problem-solving courts that stresses supporting the person's own change rather than the court solving problems.
- Drug treatment order
- An order made by Victoria's Drug Court that replaces a term of imprisonment with treatment and supervision in the community.
Problem-Solving Courts and Restorative Justice FAQ
Do Elders decide the sentence in the Koori Court?
No. Marchetti explains that in every jurisdiction the judicial officer keeps the power to sentence. Elders and community members take part in the sentencing conversation, and the person must already have pleaded or been found guilty.
Does restorative justice reduce reoffending?
A meta-analysis by Fulham and colleagues found small but significant reductions in general reoffending, no reduction in violent reoffending, and clearer improvements in victim and offender satisfaction, procedural justice and accountability.
What is therapeutic jurisprudence?
A legal philosophy developed in the United States in 1990 by Bruce Winick and David Wexler. It studies how laws and court processes affect physical and mental health and wellbeing, and how judges can reduce harm.
What are the criticisms of problem-solving courts?
The lecture notes that therapeutic approaches can be paternalistic and too focused on the offender, and that the real agent of change is the person rather than the court, which is why some prefer the term solution-focused courts.
Is restorative justice suitable for Indigenous communities?
The week's overview notes repeated criticism on this point. Price and colleagues found in Queensland that it can be an appropriate response but has had limited application, and that First Nations people must help design and deliver programs.
When did Indigenous sentencing courts begin in Australia?
Marchetti dates the first formal court to June 1999 in Port Adelaide, and identifies Victoria as the first jurisdiction to legislate for them, through the Magistrates' Court (Koori Court) Act 2002. The lecture also mentions Elders sitting with a magistrate in Broome in the 1970s.
Assessment move
Make a comparison table of the four problem-solving court types with the problem each targets and one Australian example. Learn the three entry points for restorative justice in order. If you choose essay prompt 2, collect the Fulham meta-analysis and the Price study early, because together they let you argue for restorative justice while answering the strongest opposing evidence.
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