Making the abject: problem-solving courts, addiction, mental illness and impairment

Abstract

The advent of ‘problem-solving courts’ (e.g. drug courts, mental health courts) is claimed by some to represent a significant shift in the administration of justice. Problem-solving courts purport to address the underlying social, medical and/or psychological issues that are often understood as driving certain populations’ contact with criminal justice systems. Although there is a large body of research examining the operation and efficacy of such courts, there is minimal critical research on how these courts have been conceptualized by governments as logical, suitable ‘solutions’ to both particular ‘problems’ in society and ‘problem populations’, and the various implications thereof. In this paper, we examine these issues through an adaptation of Australian post-structuralist theorist, Carol Bacchi’s theoretical framework. Bacchi argues that policy ‘problems’ do not precede policy interventions, but that ‘problems’ are instead constituted by and given meaning through implicit policy representations. In this paper we consider how two Australian problem-solving courts – Victoria’s Drug Court and the Assessment and Referral Court List for people with cognitive impairments or mental illness – have been conceptualized by Victoria’s Parliament to target their populations, the ‘problems’ they purport to address, and with what effects for targeted populations.

Acknowledgements

The authors are grateful for the useful suggestions offered by the anonymous reviewers.

Notes

1. AOD is commonly used in alcohol and other drug research as a descriptor to encapsulate substances that are associated with elevated risks and harms. It is a broad and fluid category that may incorporate both licit and illicit substances.

2. We acknowledge that there are many useful frameworks for approaching this task, with post-structural theorists and interlocutors in particular offering a range of useful approaches, including Psychological Jurisprudence (PJ). We follow Bacchi’s approach because unlike similar approaches such as PJ, Bacchi’s work offers a way for this paper to open up a space for critical discussion of the conceptual logics underpinning the establishment of specialist courts (as well as how they overlap and diverge) without prescribing precisely how things might be otherwise.

3. According to Bacchi (2009), authors should also undertake to apply the questions to their own problem representations.

4. This is not the only reference to an (imprecise and undefined) notion of the ‘anti-social’. Although it is beyond the scope of this paper to explore this issue in more depth, we note the strong normalizing tendency of this descriptor. We suggest that it is important, in examining the pervasive cultural logics in these debates, to consider who gets to judge what counts as ‘anti-social’ and how the anti-social is conceptualized. Conceptualizations of what is ‘social’ or ‘anti-social’ enable and sustain, among other things, particular practices of governance, with implications – material and discursive – for subjects.

5. We acknowledge that these associations are themselves contested and complex, and offer no opinion, here, on the validity of them (for more, see Seear and Fraser 2014).

6. Here, our use of the word ‘abject’ is informed by the work of Judith Butler: particularly, Bodies that Matter (1993) and Gender Trouble (1990). Butler defines the ‘abject’ as a concept that

relates to all kinds of bodies whose lives are not considered to be “lives” and whose materiality is understood not to “matter”. To give something of an indication: the U.S. press regularly figures non-Western lives in such terms. Impoverishment is another common candidate, as is the domain of those identified as psychiatric “cases”. (Meijer and Prins 1998, 281)

7. See, for example, the Hansard record (Parliament of Victoria, Legislative Assembly, 27 February 2002, 118), where Mr Wynne MP claimed that: ‘The government is committed to safety on our streets, in our homes and workplaces, and has tackled the problems of drug addiction in a creative way’.

8. As Thomson explains, ‘

it is not about just having services there, which at the moment is the situation in most courts: an assessment of what may be needed by an individual is being made and service links are being made, but no single monitoring of the needs of that person is going on. This program will change that … (Ms Thomson, Parliament of Victoria, Legislative Assembly, 2 February, 2010, 59).