The  Solution-Focused Judging Bench Book was written primarily by Michael King, an Australian law professor and former judge, and was published by The Australasian Institute of Judicial Administration.  The book describes how courts can apply therapeutic jurisprudence principals, which “concentrates on the law’s impact on emotional life and psychological well-being” in court hearings.

Bench books are used by judges to manage courtrooms, and this one offers some simple suggestions for making court hearings more likely to solve problems, including a whole chapter on listening skills.

While the book, and therapeutic jurisprudence (TJ) are highly useful, it remains controversial and disappointing that drug use, mental illness, and even homelessness and juvenile tobacco use (in some American states) are criminalized.  These problems are better addressed as public health concerns and should not be made into crimes, which make people criminals and our communities less safe.

“Problem-solving courts began in the 1990s to accommodate offenders with specific needs and problems that were not or could not be adequately addressed in traditional courts.” The book describes the shift occurring in Australia and New Zealand from “problem solving courts” to “Courts of Solutions” where the parties solve their own problems.  This is vastly different from traditional adversarial courts where the judge is basically a referee who listens to arguments and determines who wins.  Problem solving court judges instead listen to “participants” who are not perceived as contestants battling to win by building and persuading the judge that they have the strongest case.

The new bench book illustrates Australia’s lead in this area compared to America where problem solving courts are defined as:  “Problem-solving courts focus on the underlying chronic behaviors of criminal defendants. Acting on the input of a team of experts from the community, a problem-solving court judge orders the defendant to comply with an individualized plan and then the judge, with the assistance of the community team, exercises intensive supervision over the defendant to ensure compliance with the terms of the plan. Individualized plans may include, but are not limited to, participating in a treatment program, submitting to periodic substance abuse screenings, and restitution. If the defendant successfully complies with the terms of the individualized plan, criminal charges are dismissed. Examples of problem-solving courts in operation in the United States include drug courts, mental health courts, domestic violence courts, homeless courts, teen courts, tobacco courts, and some forms of family courts.”

This describes an autocratic process where a judge controls a defendant’s compliance with a plan developed by experts, and falls short of what The Solution-Focused Bench Book envisions.

The new bench book is another step that hopefully one day will lead to a justice system that regularly includes restorative justice, which John Braithwaite, a respected justice innovator, says “involves more concrete commitments to just processes and values.” Restorative Justice and Therapeutic Jurisprudence, Criminal Law Bulletin, 38(2), 2002, 244-262.