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Beyond Therapy: Problem-Solving Courts and the Deliberative Democratic State

Authors


  • Rekha Mirchandani is Associate Professor of Sociology at Bowling Green State University in Bowling Green, Ohio. Additional findings from her current work on problem-solving courts and the challenges they present to existing theoretical accounts of the state can be found in articles in recent issues of Law and Society Review, Gender and Society, and Punishment and Society. She can be reached at rmircha@bgnet.bgsu.edu.

  • Support from a Fall 2005 Scholar-in-Residence fellowship at the Institute for the Study of Culture and Society at Bowling Green State University is gratefully acknowledged.

Abstract

Problem-solving courts (drug courts, community courts, domestic violence courts, and mental health courts), unlike traditional courts, attempt to get at the root of the individual and social problems that motivate criminal behavior. Theoretical understandings of problem-solving courts are mostly Foucauldian; proponents argue that these new institutions employ therapeutic techniques that encourage individuals to self-engineer in ways that subtly increase state power. The Foucauldian approach captures only some elements of problem-solving courts and does not fully theorize the revolution in justice that these courts present. Problem-solving courts, domestic violence courts in particular, orient not just around individual change but also around social change and cultural transformation. Combining the Foucauldian idea of a therapeutic state (as developed by James Nolan) with an understanding of the deliberative democratic mechanisms of larger-scale structural transformation (found in Habermas and others) leads to a more balanced and empirically open orientation to the actual motivations, goals, and achievements of problem-solving courts.

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