FROM THE CLASSROOM TO THE COURTROOM: THERAPEUTIC JUSTICE AND THE GAMING INDUSTRY'S IMPACT ON LAW
Ronald J. Rychlak*
Corey D. Hinshaw**
I. Introduction
The past few decades have seen an unprecedented explosion of legalized gambling throughout the United States.[1] Only two states, Hawaii and Utah, still have a total ban on all forms of gambling.[2] In addition, illegal gambling, which is virtually impossible to regulate or quantify, is believed to be at an all-time high.[3] Whether the burgeoning gaming industry is viewed as a viable solution to economic hardship or the cause of many resulting social ills, it is nevertheless true that “[g]ambling has become a ubiquitous industry.”[4] It has infiltrated modern culture, and it is having a significant impact on the legal system.
Because of the historic ties between gambling and organized crime (not to mention the high cash volume transactions), casinos and other betting establishments are highly regulated. That regulation, of course, is unlike regulation of any other American industry. In some cases (usually involving raffles or bingo) the gambling promoter must be a charitable organization. Native Americans run many casinos throughout the nation, and the laws governing the relationship between those tribes and the host states are unique. Horse and dog tracks present their own complications. In Mississippi, as in many other states, the casinos have to float on water. This creates numerous environmental issues as well as some unusual regulations (and tort claims).
Internet gambling is emerging as a new, important (and so-far illegal) industry with its own legal issues. Lotteries also present special problems, since the state essentially runs a for-profit business with potential conflicts of interest abounding.[5] Legal sports betting is currently found only in Nevada, but a recent federal commission found that legal betting in that state has serious ramifications throughout the nation.[6] Regardless of the form of gambling, as with the rest of life, taxation is an ever-present issue, and the IRS treats gambling income differently than any other form of income. All of these matters have a direct impact on the practice of law in the United States of America.
Legalized gambling and the gaming industry have also had numerous social impacts, most of which have or will have significant ramifications for the American legal system. Most studies suggest that legalized gambling leads to an increase in divorce, bankruptcy, suicide and compulsive gambling. Problem gamblers also face financial and other problems that frequently lead to anti-social behavior. Importantly, the number of crimes committed as a result of compulsive gambling has created new problems for social institutions, especially the courts.[7]
This sudden and dramatic growth in an activity that until recently was considered illegal is having a dramatic impact on the practice of law in the United States. More and more large law firms have specific attorneys, if not whole departments, specializing in gaming law. Many bar associations have sections devoted to gaming law. In at least one recent legal malpractice case, a court considered whether attorneys who specialize in this area should be held to a higher level of expertise.[8] Several law schools now offer courses in gaming and gambling law, and there are more than a few academic journals that specialize in gambling and gaming issues.[9] Clearly, this is an industry about which legal educators, lawyers and judges must be informed.
II. The First Gambling Treatment Court
Perhaps the most interesting recent development in terms of gaming law has been the creation of a special court designed specifically to deal with the problems associated with compulsive and pathological gambling.[10] This court was opened in 2003 by Senior Justice Mark Farrell of Amherst, New York. The idea behind the court was that pathological gambling is a disease,[11] and that it is better to seek real solutions to the problems facing compulsive gamblers than merely to mete out punishment without consideration of what may have been the root cause of the crime.[12] In other words, this court put in place the principles of therapeutic jurisprudence.[13]
Therapeutic jurisprudence is a relatively new concept in law,[14] though it is rooted in older legal theories such as “sociological jurisprudence” and “legal realism” that were espoused by the likes of Roscoe Pound[15] and Oliver Wendell Holmes.[16] The therapeutic jurisprudence movement has seen consistent growth in scholarly consideration and critique as well as increasing practical implementation since its beginnings in the last decade of the twentieth century.[17] Though scholars have used various terms to explain therapeutic jurisprudence,[18] it is generally defined as “the study of the role of the law as a therapeutic agent.”[19]
Therapeutic jurisprudence has been most commonly accepted to mean “the use of social science to study the extent to which a legal rule or practice promotes the psychological and physical well-being of the people it affects.”[20] It has been widely touted as being more responsive to individuals and ultimately saving money on overcrowded prisons.[21] The primary goal of therapeutic justice is to identify the underlying cause of the criminal behavior on an individual basis, to offer the offender treatment and to ensure that the offender is released from the system having been rehabilitated to some degree so that he or she becomes a better citizen.[22] To achieve these ends, laws are evaluated in conjunction with the relevant aspects of the behavioral and social sciences, and “consistent with considerations of justice and other relevant normative values, [the] law [should] be reformed to minimize anti-therapeutic consequences and to facilitate achievement of therapeutic ones.”[23]
In applying therapeutic jurisprudence, “therapeutic” considerations are not necessarily the controlling factors; they must be weighed against other legal and social values and factors.[24] For example, “[w]hen persistent social problems, such as child abuse, domestic violence, drug addiction and parental conflict following divorce, appear on court dockets, therapeutic justice asks whether legal interventions are likely to produce net benefits or burdens for the mental health of litigants.”[25] Therapeutic jurisprudence can be applied to various contexts of the law, from criminal law and family law to tort law and commercial law.[26]
Despite strong academic support for the application of therapeutic jurisprudence,[27] it also has its critics. In order for therapeutic jurisprudence to maximize its potential, the “several conceptual and practical dilemmas” inherent in the idea must be acknowledged.[28] One major criticism of therapeutic jurisprudence is that therapeutic considerations can conflict with other normative values that are antitherapeutic.[29] In other words, treatment can conflict with the idea of punishment, depriving society of utilitarian benefits.[30] Similarly, some critics contend that therapeutic considerations should not be the province of the judicial system because they are often undeterminable.[31]
Opponents of therapeutic justice often contend that the benefits of such programs do not justify the extraordinary commitment of resources and expenditure of funds that are typically required for such programs.[32] It is certainly true that compulsive gambling is less likely to be the cause of increased crime rates than, for instance, drug addiction. Similarly, because of the relatively small percentage of people who suffer from pathological or compulsive gambling,[33] the amount of resources and money that would have to be expended for therapeutic gambling courts might outweigh the benefits. Finally, gambling addiction is harder to identify than drug addiction,[34] and the causal connection between one's problem with compulsive gambling and his or her crime is likely to be difficult for the court to identify and adjudicate.
III. Therapeutic Jurisprudence: Drug Treatment Courts
Despite potential difficulties, the benefits of understanding the interrelationship that inherently exists between social, political and psychological factors and the law are significant. Drug treatment courts are a well-documented example of court-instituted therapeutic jurisprudence,[35] and they provide a framework by which one can analyze this theory in terms of accountability, rehabilitation and outcome-oriented goals.[36]
The 1980s brought about a need for the court system to more effectively handle the numerous cases involving drug-addicted criminal defendants.[37] Under the typical adjudicatory process, the offender would stand trial, be sentenced to jail, serve time and eventually be released back to society with an overwhelming propensity to commit more crimes.[38] The drug courts, however, fundamentally revamped this process by focusing on treatment of the offender.[39] The most important matter for the judge in a drug treatment court is to set forth the treatment programs for offenders and hold them responsible for completing the programs.[40]
Drug courts provided the first practical application of therapeutic jurisprudence.[41] These courts attack the problem of drug offenses not as a willful choice to commit morally reprehensible behavior but as a condition requiring the court to apply therapeutic treatments and remedies.[42] One author briefly describes the processes considered in drug treatment courts as follows:
Problem-solving involved identifying the underlying problem (the addiction) rather than managing only the symptoms (larcenies to obtain money to buy drugs). And it involved engaging the addicted person in a process designed to produce health-based outcomes for both the addicted person and the general public.
In the TJ-oriented court, the judge and collaborative team (lawyers, social workers, prosecutors, health professionals) . . . consider what process is likely to have the most therapeutic effect for both the individual in the judicial system and the general public.[43]
Although most drug treatment courts are “unified drug courts,” meaning that one judge in one court adjudicates all persons who have been deemed eligible for the treatment program, some courts with a smaller drug-related caseload will just merely hold drug treatment court sessions.[44] While such sessions are being held, the court is guided by principles of therapeutic jurisprudence; thus, one court may function as both a traditional court and as a drug treatment court.[45]
By 2000, there were approximately 325 drug treatment courts in the United States,[46] and these courts are generally considered to have been successful in curbing recidivism.[47] In fact, both the Conference of State Court Administrators and the American Bar Association have applauded the successes of drug treatment courts and therapeutic justice as a whole.[48] Supporters of the drug treatment court movement not only assert that recidivism is low, but they also suggest that the number of incarcerated persons has decreased and court dockets have been minimized—amounting to heightened efficiency and financial savings throughout the entire system.[49] The drug treatment courts, with jurisprudential underpinnings associated with therapeutic jurisprudence, provide a structural framework for the implementation of other “problem solving courts” to combat various social problems, particularly gambling treatment courts.
IV. Gambling Courts
The medical profession has recognized compulsive and pathological gambling as an illness for over two decades,[50] but the judicial system has been reluctant to accept that conclusion.[51] Senior Justice Mark Farrell of Amherst, New York decided to create his gambling court, and he modeled it after other specialty courts that had been created to deal with domestic violence offenders and drug offenders.[52] These new gambling courts incorporate many concepts of therapeutic justice, and the primary goal is to ensure that “treatment is a mandated part of sentencing and . . . prosecutors, defense lawyers, and health care professionals cooperate to that end.”[53]
The therapeutic program established for compulsive gamblers who have committed crimes requires defendants to plead guilty and give up all rights to plea-bargain.[54] Essentially, if the defendants successfully complete the program, all criminal charges are dropped; however, if they do not comply with the gambling court's orders, they can be sent back to the criminal court and charged with a felony.[55] This is designed to “get at the problem” of compulsive gambling.[56] The court has piqued the interest of many jurists across the country,[57] and Judge Farrell has traveled widely to discuss implementation of similar courts in other states.[58]
Despite the excitement that therapeutic jurisprudence has generated in other circles, there is surprisingly little academic literature discussing the application of therapeutic jurisprudence or preventive law principles to the problem of pathological and compulsive gambling. It is, however, an area that calls out for more study.
Just as the conventional court system has been unable to successfully deal with drug-addicted criminal defendants,[59] it also has largely failed to deal with compulsive gambling as a social problem.[60] Therapeutic jurisprudence has been written about and applied to a plethora of various social problems over the past decade; however, compulsive gambling has been absent from this group for too long. Compulsive gambling is now more of an important social ill and mental disorder than ever before.[61] The time is ripe for application of therapeutic jurisprudence to compulsive gambling problems.
Gambling treatment courts can and should be tested to see whether they can provide effective treatment to defendants who have been charged with embezzlement, theft and other related crimes.[62] Whether the goal of gambling treatment courts will be achieved can only be determined after they are put in place and tried. The promise of these courts, however, including a lower rate of recidivism and ongoing efforts to combat the social ill of compulsive gambling, justifies the cost of experimenting with therapeutic gambling programs in those jurisdictions that have widespread legalized gambling.
V. Conclusion
Because gambling is increasing in our society, the court system cannot ignore the medically-recognized mental disorder of pathological gambling that is likely the root cause of a number of crimes and other social ills. Therapeutic jurisprudence can be an important way for society to look at these problems. Incarcerating compulsive gamblers without recognition or identification of their problems does not help the criminal, the court system or society as a whole.
The already-established drug courts throughout the nation and the gambling court in New York can serve as models for future gambling courts. Widespread establishment of gambling treatment courts may not yet be obtainable or even necessary, but those states with high concentrations of gambling should consider such programs. Moreover, if a lack of funds or a low case load of gambling-related cases leads to the conclusion that a full-blown specialty gambling court is not warranted, therapeutic jurisprudence principles should be adopted and applied to provide treatment and rehabilitation to compulsive gamblers within the traditional court. Compulsive gambling is a problem that has been identified and therapeutic jurisprudence and gambling treatment courts provide a possible solution that, at the very least, should be given a chance.[63]
* Mississippi Defense Lawyers Association Professor of Law, Associate Dean for Academic Affairs at the University of Mississippi School of Law and member of the International Masters of Gaming Law. This paper was originally presented by Professor Rychlak at the Southeastern Association of Law Schools meeting at Kiawah Island, South Carolina, in July 2004.
[1] See R. Randall Bridwell & Frank L. Quinn, From Mad Joy to Misfortune: The Merger of Law and Politics in the World of Gambling, 72 Miss. L.J. 565, 567 (2002) (“Though gambling of some sort has appeared in just about every culture throughout recorded history, it only became a gigantic nationwide business in the United States in the last twenty-five years.” (footnote omitted)); John Warren Kindt & John K. Palchak, Legalized Gambling's Destabilization of U.S. Financial Institutions and the Banking Industry: Issues in Bankruptcy, Credit, and Social Norm Production, 19 Bankr. Dev. J. 21, 24-25 (2002) (discussing the increase in people gambling and the increase in the legalization of gambling during the 1990s); Ronald J. Rychlak, The Introduction of Casino Gambling: Public Policy and the Law, 64 Miss. L.J. 291, 303-04 (1995) (discussing the spread of gambling across America).
[2] See A. Gregory Gibbs, Note, Anchorage: Gaming Capital of the Pacific Rim, 17 Alaska L. Rev. 343, 345 (2000) (pointing out that the public seems to be “consistent and supportive in their acceptance of legalized gambling”); see also Robert M. Jarvis et al., Gaming Law: Cases and Materials 17 (2003) (noting that although there is “outright prohibition” in Hawaii and Utah, there is “unabashed promotion” in Nevada and New Jersey); William N. Thompson, Legalized Gambling 1-4 (2d ed. 1997) (discussing the proliferation of legalized gambling throughout North America). In fact, Tennessee just recently joined the ranks of almost forty other states when the legislature created a statewide lottery, per the will of a majority of the people. See generally John P. Williams, Let the Games Begin: Examining the Lottery, 39 Tenn. B.J. 19, Nov. 2003 (detailing the legislation creating the Tennessee Lottery).
[3] One estimate is that Americans bet approximately $1 trillion per year in both legal and illegal gambling. Jarvis, et al., supra note 2, at 17.
[4] Lori K. Miller & Cathryn L. Claussen, Online Sports Gambling—Regulation or Prohibition?, 11 J. Legal Aspects Sport 99, 99 (2001).
[5] See generally Ronald J. Rychlak, Lotteries, Revenues and Social Costs: A Historical Examination of State-Sponsored Gambling, 34 B.C. L. Rev. 11 (1992).
[6] Nat'l Gambling Impact Study Comm'n (NGISC) Final Report ch. 2, 14-15 (June 1999), available at http://govinfo.library.unt.edu/ngisc/fullrpt.html. See Ronald J. Rychlak, A Bad Bet: Federal Criminalization of Nevada's Collegiate Sports Books, 4 Nev. L.J. 320, 320-21 (2003-04) (discussing the formation and findings of the NGISC).
[7] See Justin W. Starr, Note, Diminished Capacity Departures for Compulsive Gambling: Punishing the Pathological or Pardoning the Common Criminal?, 2003 BYU L. Rev. 385, 394 n.47 (2003) (listing numerous accounts of incidences of crime resulting from compulsive gambling). See generally Rychlak, supra note 1.
[8] Day v. Dorsey & Whitney, 21 Fed. App. 530 (8th Cir. 2001). In this case, the Eighth Circuit determined that the plaintiffs were sophisticated investors who had not been misled by the defendant law firm. Day, 21 Fed. App. at 531. Accordingly, it was not necessary to fully explore this issue. Id. “During depositions, however, the plaintiffs had sought detailed information about the firm's practice group, presumably to show that it should be held to a higher standard of care.” Robert Jarvis et al., Gaming Law: Cases and Materials: Teachers Manual 5 (2003).
[9] There is currently one gaming law textbook on the market, see Jarvis et al., supra note 2. In addition, The Gaming Law Review and The Gaming Lawyer both specialize in gaming law issues, and other law reviews often publish symposia issues focused on gaming law. See, e.g., 4 Nev. L.J. (2003-04).
[10] Sylvia Hsieh, Gambling Courts: The Next Trend in Specialized Courts, Law. Wkly. USA, August 4, 2003, at 15. See generally Therapeutic Justice Still a Long Shot, Albany Times, Jan. 13, 2003 (discussing the creation of the first gambling court) at http://www.responsiblegambling.org/articles/Therapeutic_justice_still_a_ long_shot.pdf.
[11] In The Diagnostic and Statistical Manual of Mental Disorders (DSM), the American Psychiatric Association classifies pathological gambling as a form of mental disorder. Peter Collins, Gambling and the Public Interest 137 (2003). The DSM defines pathological gambling as “persistent and recurrent maladaptive (gambling) behavior that disrupts personal, family or vocational pursuits.” Id. (quoting American Psychiatric Association, The Diagnostic and Statistical Manual of Mental Disorders (4th ed., 1994)). The DSM lists ten descriptions identifying pathological gamblers; if five of the ten are present in an individual, a diagnosis of pathological gambling is warranted. Id. at 137-38. It should be noted that, however, only about three to four percent of the population are deemed “probable or potential compulsive gamblers.” Mike Roberts, The National Gambling Debate: Two Defining Issues, 18 Whittier L. Rev. 579, 601-02 (1997). “[C]ompulsive gambling does not seem to be a statistically serious problem in society, although the disease or condition may be especially serious for the individual.” Id. at 602. Peter Collins claims that people who seek the restriction or prohibition of legalized gaming point to the fact that an increase in legalized gaming leads to an increase in gambling addiction, which should not be encouraged by the government; on the other hand, proponents of legalized gambling argue that, in reality, problem gambling is a minuscule problem when considering the benefits of the gaming industry. Collins, supra at 130-31.
[12] See I. Nelson Rose, The World's Only Gambling Court, at http:// www.gamblingandthelaw.com/columns/153_gambling_court.htm (last visited Feb. 10, 2004) (noting that none of the graduates of the Gambling Court has “been convicted as a repeat offender”).
[13] “Therapeutic jurisprudence” is often synonymously referred to as “therapeutic justice” throughout much of the literature on the subject and is used interchangeably in this paper. Some of the authors quoted herein simply refer to the concept as “TJ.”
[14] See Peggy Fulton Hora et al., Therapeutic Jurisprudence and the Drug Treatment Court Movement: Revolutionizing the Criminal Justice System's Response to Drug Abuse and Crime in America, 74 Notre Dame L. Rev. 439, 446 (1999) (discussing sociological jurisprudence as a precursor to therapeutic jurisprudence). “The rapid rise of therapeutic jurisprudence . . . heralds the emergence of a new era in the legal profession . . . in which law and legal practice may be more humane, therapeutic, beneficial, humanistic, healing, restorative, curative, collaborative, and comprehensive.” Susan Daicoff, The Role of Therapeutic Jurisprudence within the Comprehensive Law Movement, in Practicing Therapeutic Jurisprudence: Law as a Helping Profession 465 (Dennis P. Stolle et al. eds., 2000) [hereinafter Practicing Therapeutic Jurisprudence].
[15] Hora et al., supra note 14, at 446. The notion of “sociological jurisprudence” as discussed by Pound is similar in theory to that of therapeutic jurisprudence in that it asserts “that the law must look to the relationship between itself and the social effects it creates.” Id.
[16] Id. “The life of the law has not been logic: it has been experience,” is the famous quote of Justice Oliver Wendell Holmes often cited and recited by proponents of therapeutic jurisprudence. Oliver Wendell Holmes, Jr., The Common Law 1 (1881).
[17] Christopher Slobogin, Therapeutic Jurisprudence: Five Dilemmas to Ponder, 1 Psychol., Pub. Pol'y & L. 93, 193 (1995). Most notably, courts have become very interested in the concept of therapeutic jurisprudence. David B. Wexler, Relapse Prevention Planning Principles for Criminal Law Practice, in Practicing Therapeutic Jurisprudence, supra note 14, at 241. “Fortunately, the movement from theory to practice is now occurring, as therapeutic jurisprudence begins to strike a responsive chord among segments of the judiciary and of the legal profession.” David B. Wexler, Practicing Therapeutic Jurisprudence: Psychological Soft Spots and Strategies, in Practicing Therapeutic Jurisprudence, supra note 14, at 46 (footnotes omitted). “[T]he movement of therapeutic jurisprudence from the academic realm to real-world activity is now beginning to occur, especially in the realm of the therapeutic application of the law by trial judges and by attorneys.” David B. Wexler, The Development of Therapeutic Jurisprudence: From Theory to Practice, 68 Rev. Jur. U.P.R. 691, 699 (1999) (emphasis omitted).
[18] See e.g., Dennis P. Stole et al., Integrating Preventive Law and Therapeutic Jurisprudence: A Law and Psychology Based Approach to Lawyering, in Practicing Therapeutic Jurisprudence, supra note 14, at 7 (“Therapeutic jurisprudence is an interdisciplinary approach to law that builds on the basic insight that law is a social force that has inevitable (if unintended) consequences for the mental health and psychological functioning of those it affects.”); Hora et al., supra note 14, at 444 (“Fundamentally, therapeutic jurisprudence focuses on the `sociopsychological ways' in which laws and legal processes affect individuals involved in our legal system. . . . [T]herapeutic jurisprudence can illuminate how laws and legal processes may in fact support or undermine the public policy reasons for instituting those laws and legal processes.” (footnote omitted)); LeRoy L. Kondo, Advocacy of the Establishment of Mental Health Specialty Courts in the Provision of Therapeutic Justice for Mentally Ill Offenders, 24 Seattle U. L. Rev. 373, 380 (2000) (footnote omitted) (“The theory of therapeutic jurisprudence maintains that the law asserts beneficial therapeutic or detrimental antitherapeutic psychological or other consequences upon individuals that are often minimized by the legal community.”).
[19] Bruce J. Winick, The Jurisprudence of Therapeutic Jurisprudence, 3 Psychol., Pub. Pol'y & L. 184, 185 (1997).
[20] Hora et al., supra note 14, at 442-43 n.10 (quoting Slobogin, supra note 17, at 193) (emphasis omitted).
[23] Dennis P. Stole et al., Integrating Preventive Law and Therapeutic Jurisprudence: A Law and Psychology Based Approach to Lawyering, in Practicing Therapeutic Jurisprudence, supra note 14, at 7.
[24] See Hora et al., supra note 14, at 445 (comparing the balance of therapeutic considerations to the First Amendment balance of rights).
[25] Andrew Schepard & James W. Bozzomo, Efficiency, Therapeutic Justice, Mediation, and Evaluation: Reflections on a Survey of Unified Family Courts, 37 Fam. L.Q. 333, 339 (2003). The therapeutic justice concept does not necessarily seek to reform laws but to inquire as to how existing laws may be applied in the most therapeutic manner so as to broaden the concept to be not only theoretical in nature but also to have practical applications. Wexler, The Development of Therapeutic Jurisprudence: From Theory to Practice, supra note 17, at 697.
[26] See Dennis P. Stole et al., Integrating Preventive Law and Therapeutic Jurisprudence: A Law and Psychology Based Approach to Lawyering, in Practicing Therapeutic Jurisprudence, supra note 14, at 8 (listing the areas of law to which therapeutic jurisprudence has been applied as “criminal law, family law, juvenile law, disability law, discrimination law, health law, evidence law, tort law, contracts and commercial law, labor arbitration, workers' compensation law, probate law, and legal profession”); see also Douglas A. Van Epps, Therapeutic Justice Adds to Prescriptions for Problems, Disp. Resol. Mag., Spring 2000, at 9 (“[T]oday the therapeutic jurisprudence paradigm or construct is being considered with respect to virtually every type of problem appearing in court . . . .”).
[27] See Daicoff, supra note 14, at 466-67 (listing similar and/or complimentary legal theories and concepts: “preventive law . . . procedural justice, restorative justice, facilitative mediation, transformative mediation, holistic law, collaborative law, creative problem solving, and specialized courts”). David Wexler wrote, “[T]herapeutic jurisprudence work is now being enriched by the efforts of some to explore intellectual links between it and related approaches—such as procedural justice, restorative justice, the ecology of human development, alternative dispute resolution, and preventive law.” Wexler, The Development of Therapeutic Jurisprudence: From Theory to Practice, supra note 17, at 697 (footnotes omitted). For a discussion advocating the integration of therapeutic jurisprudence and preventive law principles, see generally Dennis P. Stolle & David B. Wexler, Therapeutic Jurisprudence and Preventive Law: A Combined Concentration to Invigorate the Everyday Practice of Law, 39 Ariz. L. Rev. 25 (1997).
[28] Slobogin, supra note 17, at 195. Professor Slobogin has identified five conceptual problems with therapeutic jurisprudence:
(1) It can be so broadly defined and so closely related to other legal theories that it lacks identity and adds no significant value to modern jurisprudence;
(2) The terms “therapeutic” and “well-being” should be more clearly and specifically defined;
(3) “Empirical indeterminacy” may result because therapeutic jurisprudence is so dependent on social and behavioral science research;
(4) The fear that applying therapeutic jurisprudence effectively abandons the rule of law; and
(5) The problems associated with balancing therapeutic considerations with other substantial factors.
Id. at 195-210. Slobogin identifies these as the five dilemmas that question “the viability of therapeutic jurisprudence.” Id. at 195. In conclusion, Slobogin emphasizes that his critiques are nothing more than suggestions for improvement “needed to goad therapeutic jurisprudence into a critical self-consciousness.” Id. at 219. In supporting this same proposition, one author states, “The notion of applying the law therapeutically . . . is in desperate need of a facilitating legal structure or context.” Stolle & Wexler, supra note 27, at 27.
[29] See Dennis P. Stole et al., Integrating Preventive Law and Therapeutic Jurisprudence: A Law and Psychology Based Approach to Lawyering, in Practicing Therapeutic Jurisprudence, supra note 14, at 8 (commenting on the criticism that therapeutic jurisprudence is paternalistic); Hora et al., supra note 14, at 445 (noting that therapeutic justice is not to be used as the “dominant perspective”).
[30] See Ronald J. Rychlak, Society's Moral Right to Punish: A Further Exploration of the Denunciation Theory of Punishment, 65 Tul. L. Rev. 299, 322-25 (1990) (discussing the utilitarian theory of punishment).
[31] See Dennis P. Stole et al., Integrating Preventive Law and Therapeutic Jurisprudence: A Law and Psychology Based Approach to Lawyering, in Practicing Therapeutic Jurisprudence, supra note 14, at 8-9 (listing various critiques of therapeutic jurisprudence).
[32] See Carns et al., supra note 22, at 17-18 (detailing the costs associated with therapeutic justice). Of course, if the total costs of all the rehabilitative efforts associated with drug treatment courts were compared to the cost of incarceration for a year, the latter would be substantially more costly. Id. at 18.
[34] Gambling problems are often “masked” behind other problems such as drug or alcohol abuse. Hsieh, supra note 10, at 15; Rychlak, supra note 5, at 11.
[35] Problem solving courts most often deal with domestic affairs, mental health concerns or criminal cases involving drugs and/or alcohol. Bruce J. Winick, Therapeutic Jurisprudence and Problem Solving Courts, 30 Fordham Urb. L.J. 1055, 1055-56 (2003). They have been defined as “specialized tribunals established to deal with specific problems, often involving individuals who need social, mental health, or substance abuse treatment services.” Id. at 1055. The idea of problem solving courts grew out of the drug treatment court movement. Id. at 1062. The practical establishment of these types of courts can best be understood within the theoretical framework of therapeutic jurisprudence. Id. Professor Bruce Winick suggests that more and more often, new problems that are socio-psychological in nature are requiring courts to be more than arbiters of disputes and necessitating inquiry into human intricacies. Id. at 1055.
[36] In addition to drug treatment courts, unified family courts are also another notable example of a type of therapeutic justice court that has been implemented in various jurisdictions around the country. See Schepard & Bozzomo, supra note 25, at 334. “A unified family court . . . expands th[e] traditional notion of a family court to encompass a single court that coordinates the work of independent agencies and tribunals, each with some limited role in resolving the problems incident to a family's legal matters.” Barbara A. Babb & Judith D. Moran, Substance Abuse, Families, and Unified Family Courts: The Creation of a Caring System, 3 J. Health Care L. & Pol'y 1, 13-14 (1999). One judge contends that jurisdictions with unified family courts based on concepts of therapeutic, restorative and preventive justice are already better as a result, and future implementation of such courts in other areas will equate to a more just and outcome-oriented system for all involved. Michael A. Town, The Unified Family Court: Preventive, Therapeutic and Restorative Justice for America's Families, at www.preventivelawyer.org/content/essays/town.htm (last visited Feb. 10, 2005). Though the unified family courts are a model of practical application of preventive law and therapeutic jurisprudence, the drug treatment court model is likely more analogous to gambling treatment courts; therefore, the drug treatment court movement will be discussed in further detail to the exclusion of unified family courts. See Carns et al., supra note 22, at 6 (noting that even though their intent was to convey the concept of therapeutic jurisprudence more broadly, “much of the available literature and evaluation is associated with drug courts”).
[37] See The Drug Court Movement, NIJ Update (Nat'l Inst. for Justice, Washington, D.C.), Sept. 1995 (discussing the development and components of a drug court) http://www.ncjrs.org/txtfiles/drgctmov.txt (last visited Feb. 10, 2005).
[39] See The Drug Court Movement, supra note 37 (discussing the bringing of treatment into the court system).
[42] Hora et al., supra note 14, at 463. “DTCs view drug offenders through a different lens than the standard court system. . . . [T]raditional criminal jurisprudence methods do not take into account the cases of a drug addicted defendant's behavior when adjudicating drug cases.” Id. at 463-64.
[44] See Hora et al., supra note 14, at 471 (noting the once-weekly session held in the Kalamazoo, Michigan drug treatment court).
[46] Van Epps, supra note 26, at 10. Drug court programs may receive federal funding through the United States Department of Justice Office of Drug Court Programs if they meet ten components including drug abuse treatment, drug testing of program participants and collaboration with other service organizations. Carns et al., supra note 22, at 8. The criteria set forth by the federal government includes the following ten “key components”:
(1) the integration of substance abuse treatment with justice system case processing; (2) use of a non-adversarial approach where the prosecution and defense promote public safety while protecting the right of the accused to due process; (3) early identification and prompt placement of eligible participants; (4) access to a continuum of treatment, rehabilitation, and related services; (5) frequent testing for alcohol and illicit drugs; (6) a coordinated strategy among judge, prosecution, defense and treatment providers to govern offender compliance; (7) ongoing judicial interaction with each participant; (8) monitoring and evaluation to measure achievement of program goals and gauge effectiveness; (9) continuing interdisciplinary education to promote effective planning, implementation and operation; and (10) partnerships with public agencies and community-based organizations to generate local support and enhance drug court effectiveness.
Id.
[47] Carns, supra note 22, at 8. But cf. id. at 16-17 (“[A] few projects have not been able to demonstrate that the drug court population fared any better in terms of post-program recidivism rates than the control or comparison groups.”
[49] See Kondo, supra note 18, at 401 (noting that independent investigation of these claims is required). In much the same manner as this paper aspires to do with specialty gambling treatment courts, Kondo's article advocates the creation of mental health specialty courts based on the models of drug treatment courts and specialty family courts. See generally id. at 397-422.
[50] The American Psychiatric Association officially acknowledged pathological gambling to be a “mental disorder” in 1980. Hsieh, supra note 10, at 15.
[51] Ronald J. Rychlak & Julie Jarrell, Compulsive Gambling as a Criminal Defense, 4 Gaming L. Rev. 333 (2000). In one recent case, however, a federal court in New York found that pathological gambling qualified as “diminished mental capacity” for the purposes of reducing sentencing for a defendant who was a compulsive gambler. United States v. Liu, 267 F. Supp. 2d 371, 375 (E.D.N.Y. 2003).
[52] Rose, supra note 12. Rose further states, “The law does not punish people for being ill.” Id. The idea of drug treatment courts is a relatively new one that seeks to provide drug and alcohol treatment for those who come through the criminal justice system as well as expedite the unprecedented number of cases coming through the courts involving drug abuse. Hora, supra note 14, at 448-49. The first drug court was started in 1989 by a Florida judge with the intent to “systematically bring[] drug treatment to the criminal justice population entering the court system.” The Drug Court Movement, supra note 37.
[53] Robert L. Stenander, You Bet Your Life, GPSolo, Jan.-Feb. 2004, at 51. “[Mark] Farrell is a pioneer in therapeutic justice, which focuses on accountability while addressing the underlying illnesses such as alcohol, drug and gambling addiction.” Therapeutic Justice Still a Long Shot, supra note 10.
[57] Judges in California, Florida, Illinois, Indiana, Kentucky, Louisiana, Oregon and Pennsylvania have expressed interest in starting up gambling courts. See Hsieh, supra note 10, at 15.
[59] See Hora et al., supra note 14, at 535 (noting that courts “have, until recently, been ill-equipped to deal with the problem of drug-addicted defendants”).
[62] See Starr, supra note 7, at 391 n.37 (providing actual examples of cases in which crimes were committed to further a gambling addiction).
[63] The gaming industry should applaud and support the efforts of gaming treatment courts because such courts recognize, identify and assist compulsive gamblers, thereby potentially avoiding more serious complications for the industry. In many ways, such courts provide a service to the industry by bearing the burden of identifying problem gamblers and assisting them in their treatment.