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The Politics of Benchcraft: The Role of Judges in Mental Health Courts

Published online by Cambridge University Press:  27 December 2018

Ursula Castellano
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Abstract

Mental health courts (MHCs) offer community-based treatment in lieu of criminal prosecution for chronic offenders with psychiatric disabilities, and MHC judges enjoy expanded powers to achieve the court's objectives. Because scholars know little about how judges transition into a new occupational role in the problem-solving courtroom, this ethnographic study of four MHCs in the United States focuses on how judges learn to orchestrate their responses to treatment noncompliance in this novel court setting. The goal of this article is to examine the professionalization of MHC judges and the emergent craft of therapeutic adjudication. To achieve this goal, I investigate judicial strategies for motivating, questioning, and defending participants accused of wrongdoing. I conclude that the art and practice of problem-solving justice requires judges to rise to the larger institutional challenges embedded in the alternative courtroom, a process I call the politics of benchcraft.

Type
Articles
Information
Law & Social Inquiry , Volume 42 , Issue 2 , Spring 2017 , pp. 398 - 422
Copyright
Copyright © American Bar Foundation, 2017 

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References

Albonetti, Celesta A. 1991. An Integration of Theories to Explain Judicial Discretion. Social Problems 38 (2): 247–66.Google Scholar
Alschuler, Albert. 1976. The Trial Judge's Role in Plea Bargaining, Part I. Columbia Law Review 76 (7): 1059–1154.Google Scholar
Baker, Kimberly. 2013. Decision Making in a Hybrid Organization: A Case Study of a Southwestern Drug Court Treatment Program. Law & Social Inquiry 39 (1): 27–54.Google Scholar
Bazelon, David L. 2003. Criminalization of People with Mental Illnesses: The Role of Mental Health Courts in System Reform. Washington, DC: Bazelon Center for Mental Health Law.Google Scholar
Berg, M. 2005. Mental Health Courts: A New Solution to an Old Problem. Behavioral Health Management July/August:16–21.Google Scholar
Berman, Greg. 2000. What Is a Traditional Judge Anyway? Problem‐Solving in the State Courts. Judicature 84 (2): 78–85.Google Scholar
Berman, Greg. 2004. Redefining Criminal Courts: Problem Solving and the Meaning of Justice. American Criminal Law Review 41:1313–19.Google Scholar
Berman, Greg, and Feinblatt, John. 2002. Judges and Problem Solving Courts. Center for Court Innovation. http://www.courtinnovation.org/sites/default/files/JudgesProblemSolvingCourts1.pdf (accessed January 29, 2016).Google Scholar
Blumberg, Abraham. 1967. The Practice of Law as a Confidence Game: Organizational Cooptation of a Profession. Law & Society Review 1 (2): 15–40.Google Scholar
Boldt, Richard C. 2009 . A Circumspect Look at Problem‐Solving Courts. In Problem‐Solving Courts: Justice for the Twenty‐first Century? ed. Higgins, Paul and Mackinem, Mitchell, 12–32. Santa Barbara, CA: ABC‐CLIO.Google Scholar
Boldt, Richard C., and Singer, Jana. 2006. Juristocracy in the Trenches: Problem‐Solving Judges and Therapeutic Jurisprudence in Drug Treatment Courts and Unified Family Courts. Maryland Law Review 65:82–99.Google Scholar
Braithwaite, John. 1989. Crime, Shame and Reintegration. New York: Cambridge University Press.Google Scholar
Brandeis Institute for International Judges (BIIJ). 2007. Integrity and Independence: The Shaping of the Judicial Persona. http://www.brandeis.edu/ethics/pdfs/internationaljustice/ethics/Topics%20in%20Ethical%20Practice2007.pdf (accessed January 29, 2016).Google Scholar
Burns, Stacy, and Peyrot, Mark. 2003. Tough Love: Nurturing and Coercing Responsibility and Recovery in California Drug Courts. Social Problems 50 (3): 416–38.Google Scholar
Recovery in California Drug Courts. 2008. Reclaiming Discretion: Judicial Sanctioning Strategy in Court‐Supervised Drug Treatment. Journal of Contemporary Ethnography 37 (6): 720–44.Google Scholar
Castellano, Ursula. 2011. Courting Compliance: Case Managers as “Double Agents” in the Mental Health Court. Law & Social Inquiry 36 (2): 484–514.Google Scholar
Charmaz, Kathy. 2001. The Grounded Theory Model: An Explication and Interpretation. In Contemporary Field Research: A Collection of Readings, 2nd ed., ed. Emerson, Robert, 109–26. Prospect Heights, IL: Waveland Press.Google Scholar
Conley, John, and O'Barr, William. 2005. The Natural History of Disputing. In Just Words: Law, Language and Power, 2nd ed. Chicago, IL: University of Chicago Press.Google Scholar
Corvette, Barbara Budjac. 2000. Therapeutic Jurisprudence. Sociological Practice: A Journal of Clinical and Applied Sociology 2:127–32.Google Scholar
Denckla, Derek, and Berman, Greg. 2001. Rethinking the Revolving Door: A Look at the Mental Health Courts. New York: Center for Court Innovation.Google Scholar
Diacoff, Susan. 2006. Law as a Healing Profession: The Comprehensive Law Movement. Pepperdine Dispute Resolution Law Journal 6 (1): 1–62 Google Scholar
Eaton, Leslie, and Kaufman, Leslie. 2005. Judges Turn Therapists in Problem‐Solving Court. New York Times, Section A, column 2, page 1.Google Scholar
Eisenstein, James, and Jacob, Herbert. 1977. Felony Justice: An Organizational Analysis of the Criminal Courts. Boston, MA: Little, Brown.Google Scholar
Feeley, Malcolm M. 1979. The Process Is the Punishment: Handling Cases in the Lower Criminal Courts. New York: Russell Sage Foundation.Google Scholar
Fisler, Carol. 2005. Building Trust and Managing Risk: A Look at a Felony Mental Health Court. Psychology, Public Policy and Law 11 (4): 587–604.Google Scholar
Fisler, Carol. 2015. When Research Challenges Policy and Practice: Toward a New Understanding of Mental Health Courts. Judges' Journal 54 (2): 8–13.Google Scholar
Flemming, Roy B., Nardulli, Peter F., and Eisenstein, James. 1992. The Craft of Justice: Politics and Work in Criminal Court Communities. Philadelphia, PA: University of Pennsylvania Press.Google Scholar
Garfinkel, Harold. 1956. Conditions of Successful Degradation Ceremonies. American Journal of Sociology 61 (5): 420–24.Google Scholar
Glendon, Mary Ann. 1994. A Nation Under Lawyers: How the Crisis in the Legal Profession Is Transforming American Society. New York: Farrar, Straus and Giroux.Google Scholar
Goffman, Erving. 1952. On Cooling the Mark Out: Some Aspects of Adaptation to Failure. Psychiatry 15 (4): 451–63.Google Scholar
Goffried, Emily, Carbonell, Joyce, and Miller, Lauren. 2014. The Impact of Judge–Defendant Communication on Mental Health Court Outcomes. International Journal of Law and Psychiatry 37 (3): 253–59.Google Scholar
Griffin, Patricia, Steadman, Henry, and Petrila, John. 2002. The Use of Criminal Charges and Sanctions in Mental Health Courts. Psychiatric Services 53 (10): 829–34.Google Scholar
Heimer, Carol. 1999. Competing Institutions: Law, Medicine, and Family in Neonatal Intensive Care. Law & Society Review 33 (1): 17–66.Google Scholar
Heumann, Milton. 1977. Plea Bargaining: The Experiences of Prosecutors, Judges, and Defense Attorneys. Boston, MA: G.K. Hall.Google Scholar
Hiday, Virgina Aldige, Ray, Bradley, and Wales, Heathcote. 2016. Longer‐Term Impacts of Mental Health Courts: Recidivism Two Years After Exit. Psychiatrist Services 67 (4): 378–83.Google Scholar
Holmes, Oliver Wendall. 1881. The Common Law. Boston, MA: Little, Brown, and Company.Google Scholar
Hora, Peggy Fulton, Schma, William G., and Rosenthal, John T. A. 1999. Therapeutic Jurisprudence and the Drug Treatment Court Movement: Revolutionizing the Criminal Justice System's Response to Drug Treatment Court Movement in America. Notre Dame Law Review 74 (2): 439–538.Google Scholar
Kahn, Alfred. 1953. A Court for Children: A Study of the New York City Children's Court. New York: Columbia University Press.Google Scholar
Kleiman, Mark. A. R. 2009. When Brute Force Fails: How to Have Less Crime and Less Punishment. Princeton/Oxford: Princeton University Press.Google Scholar
Knudsen, Kraig J., and Wingenfeld, Scott. 2016. A Specialized Treatment Court for Veterans with Trauma Exposure: Implications for the Field. Community Mental Health Journal 52 (2): 127–35.Google Scholar
Kritzer, Herbert. M. 2007. Toward a Theorization of Craft. Social and Legal Studies 16 (3): 321–40.Google Scholar
Kupchik, Aaron. 2006. Judging Juveniles: Prosecuting Adolescents in Adult and Juvenile Courts. New York: NYU Press.Google Scholar
Lane, Eric. 2002. Due Process and Problem Solving Courts. Fordham Urban Law Journal 30 (3): 995–1026.Google Scholar
Levi‐Strauss, C. [1962] 1966. The Savage Mind. Chicago, IL: University of Chicago Press.Google Scholar
Llewellyn, Karl. 1960. The Common Law Tradition: Deciding Appeals. Boston, MA: Little, Brown and Company.Google Scholar
Lofland John, David Snow, Anderson, Leon, and Lofland, Lyn. 2006. Analyzing Social Settings: A Guide to Qualitative Observation and Analysis, 4th ed. Belmont, CA: Wadsworth.Google Scholar
Lurigio, A., Watson, A., Luchins, D., and Hanrahan, P. 2001. Therapeutic Jurisprudence in Action: Specialized Courts and the Mentally Ill. Judicature 84 (4): 184–89.Google Scholar
Lyons, Tara. 2013. Judges as Therapists and Therapists as Judges: The Collision of Judicial and Therapeutic Roles in Drug Treatment Courts. Contemporary Justice Review: Issues in Criminal, Social and Restorative Justice 16 (4): 412–24.Google Scholar
McPherson, Chad Michael, and Sauder, Michael. 2013. Logics in Action: Managing Institutional Complexity in the Drug Court. Administrative Science Quarterly 58 (2): 165–96.Google Scholar
Mahoney, Myesa Knox. 2014. Procedural Justice and the Judge–Probationer Relationship in a Co‐Occurring Disorders Court. International Journal of Law and Psychiatry 37 (3): 260–66.Google Scholar
Maynard, Douglas. 1983. Social Order and Plea Bargaining in the Courtroom. Sociological Quarterly 24 (2): 233–51.Google Scholar
McCoy, Candace. 2003. The Politics of Problem Solving: An Overview of the Origins and Development of Therapeutic Courts. American Criminal Law Review 40:1513–34.Google Scholar
McNiel, Dale, and Binder, Renee. 2007. Effectiveness of a Mental Health Court in Reducing Criminal Recidivism and Violence. American Journal of Psychiatry 164 (9): 1395–1403.Google Scholar
Miller, JoAnn, and Johnson, Donald C. 2009. Problem Solving Courts: New Approaches to Criminal Justice. Lanham, MD: Rowman and Littlefield.Google Scholar
Moore, Marlee E., and Aldige Hiday, Viginia. 2006. Mental Health Court Outcomes: A Comparison of Re‐Arrest and Re‐Arrest Severity Between Mental Health Court and Traditional Court Participants. Law and Human Behavior 30 (6): 659–74.Google Scholar
Mulcahy, Linda. 2007. Architects of Justice: The Politics of Courtroom Design. Social & Legal Studies 16 (3): 383–403.Google Scholar
Nolan, James Jr. 2001. Reinventing Justice: The American Drug Court Movement. Princeton/Oxford: Princeton University Press.Google Scholar
Nolan, James Jr. 2002. Therapeutic Adjudication. Society 39 (2): 29–38.Google Scholar
Odegaard, A. M. 2007. Therapeutic Jurisprudence: The Impact of Mental Health Courts on the Criminal Justice System. North Dakota Law Review 83:225–59.Google Scholar
Ostrom, Brian J. 2003. Domestic Violence Courts. Criminology & Public Policy 3 (1): 105–08.Google Scholar
Paik, Leslie. 2011. Discretionary Justice: Looking Inside a Juvenile Drug Court. New Brunswick, NJ: Rutgers University Press.Google Scholar
Perlin, Michael. L. 2013. “The Judge, He Cast His Robe Aside”: Mental Health Courts, Dignity and Due Process. Mental Health Law & Policy Journal 3 (1): 1–28.Google Scholar
Petrucci, Carrie. 2002. Respect as a Component in the Judge‐Defendant Interaction in a Specialized Domestic Violence Court that Utilizes Therapeutic Jurisprudence. Criminal Law Bulletin 28 (2): 263–95.Google Scholar
Ray, Bradley, Brooks Dollar, Cindy, and Thames, Kelly M. 2011. Observations of Reintegrative Shaming in a Mental Health Court. International Journal of Law and Psychiatry 34 (1): 49–55.Google Scholar
Redlich, Allison, Steadman, Henry, Monahan, John, Petrila, John, and Griffin, Patricia. 2005. The Second Generation of Mental Health Courts. Psychology, Public Policy, and Law 11:527–38.Google Scholar
Rich, Josiah, Wakeman, Sarah, and Dickman, Samuel. 2011. Medicine and the Epidemic of Incarceration in the United States. New England Journal of Medicine 364 (2): 2081–83.Google Scholar
Ronner, Amy D. 2010. Law, Literature, and Therapeutic Jurisprudence. Durham, NC: Carolina Academic Press.Google Scholar
Sarteschi, Christine, Vaughn, M. G., and Kim, K. 2011. Assessing the Effectiveness of Mental Health Courts: A Quantitative Analysis. Journal of Criminal Justice 39 (1): 12–20.Google Scholar
Spinak, Jane M. 2008. Romancing the Court. Family Court Review 46 (2): 258–74.Google Scholar
Steadman, Henry J., Davidson, Susan, and Brown, Collie. 2001. Mental Health Courts: Their Promise and Unanswered Questions. Psychiatric Services 52:457–58.Google Scholar
Stith, Kate, and Cabranes, Jose. 1998. Fear of Judging: Sentencing Guidelines in the Federal Courts. Chicago, IL: University of Chicago Press.Google Scholar
Strauss, Anselm, and Corbin, Juliet. 1998. Basics of Qualitative Research: Techniques and Procedures for Developing Grounded Theory. Thousand Oaks/London: Sage Publications.Google Scholar
Suchman, Mark. 1995. Managing Legitimacy: Strategic and Institutional Approaches. Academy of Management Journal 20 (3): 571–610.Google Scholar
Talesh, Shauhin. 2007. Mental Health Court Judges as Dynamic Risk Managers: A New Conceptualization of the Role of Judges. DePaul Law Review 57 (1): 93–132.Google Scholar
Tiger, Rebecca. 2012. Judging Addicts: Drug Courts and Coercion in the Justice System. New York: New York University Press.Google Scholar
Wales, Heathcote, Aldigé Hiday, Virginia, and Ray, Bradley. 2010. Procedural Justice and the Mental Health Court Judge's Role in Reducing Recidivism. International Journal of Law and Psychiatry 33 (4): 265–71.Google Scholar
Wexler, David. 1992. Putting Mental Health into Mental Health Law: Therapeutic Justice. Law and Human Behavior 16 (1): 27–38.Google Scholar
Winick, Bruce. 2002. Therapeutic Jurisprudence and Problem‐Solving Courts. Fordham Urban Law Journal 30 (3): 1055–1103.Google Scholar
Winick, Bruce, and Wexler, David B., eds. 2003. Judging in a Therapeutic Key: Therapeutic Jurisprudence and the Courts. Durham, NC: Caroline Academic Press.Google Scholar
Woojae, Han, and Redlich, Allison D. 2016. The Impact of Community Treatment on Recidivism Among Mental Health Court Participants. Psychiatric Services 67 (4): 384–90.Google Scholar