Due Process v Therapeutic Process Redux

Dr Nigel Stobbs1

1QUT, Durack, Australia

This paper examines the perceived tension between due process and therapeutic process in problem solving courts. Although individual courts and programs can and do become dysfunctional in terms of their adherence to best practice, and the wider criminal justice system is often notoriously unable to guarantee effective representation to criminal defendants, I argue that courts which operate according to principles of therapeutic jurisprudence are not only consistent with due process and procedural justice, these are symbiotic requirements. Continuing criticisms of the problem solving jurisdictions in the US, I suggest, are likely grounded in more than a conflation of flaws in individual programs and defence competence with defects in the therapeutic model however. The persistence of this sort of criticism is not a result of simple ignorance or misunderstanding.


Nigel is a researcher in the Crime and Justice Research Centre at the Queensland University of Technology. His research interests include therapeutic jurisprudence, sentencing law and policy and Chinese law.

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