In my view therapeutic justice requires bringing an ethic of care to the law through the efforts of the attorneys, judges and staff, just as doctors and nurses would in caring for a patient in a medical setting. This ethic of care requires the families and children, or any litigant for that matter, who come before the court to be treated with great civility, dignity and patience. Efforts must be made to develop a rich source of information about their problems so that a variety of disciplines and areas of expertise such as social work, family dynamics, child development, psychology, and medicine are brought to bear on the family’s problems. The family intervention should include prompt, front end loaded, well-documented and case specific services, rather than a bureaucratic, one size fits all (or one size fits none) case plan. Consistent with due process every effort should be made to minimize the impact of adversary court hearings so the family may continue on its way without emotional and financial devastation.

This commitment to therapeutic justice may require early settlement conferences, family group conferencing, mediation and other less adversarial forms of dispute resolution. Every effort should be made to be collegial, user friendly, and prompt. And when a contested hearing is needed, it should be conducted in a civil and productive manner. Does this sound like your typical judicial system? If not, care should be taken to figure out why the system cannot accommodate this ethic of care.

The American criminal justice system can likewise take a page from the family justice system so long as due process is observed.  Otherwise an unfettered adversary criminal justice system can create a great deal of unnecessary harm, both anticipated and unexpected.  This unexpected harm is a term I call “jurigenic effect” similar to “iatrogenic effect” in medicine.  At times criminal justice appears to provide a very wooden, procrustean and quite unrealistic approach to community issues.  In my view the common law and  the Model Penal Code must be tempered with large amounts of discretion, reason and common sense.  Restorative justice is a viable alternative as well and goes back to old school neighborhood justice of sorts balancing accountability, community safety and restitution.  An article on Restorative Justice written for the Honolulu Advertiser is included in this website.

One key ingredient of criminal law is the jury system. As one of about 10 countries out of 200 in the world, I appreciated the common sense of juries as there is nearly 400 years of life experience within a body of 12 jurors.  It was my belief that juries do the right thing once they understand their position, impact and influence.  Hawai`i  juries are allowed to take notes, ask questions of witnesses in writing via the judge and more.  I would meet with every jury after the verdict and provide a careful debriefing within the standards of judicial ethics and provide them with a signed certificate of appreciation along with a handout on keeping our children out of court and off drugs.  A copy of that handout is likewise in this website.

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