‘But I Ain’t a Judge’: The Therapeutic Jurisprudence Implications of the Use of Non-Judicial Officers in Criminal Justice Cases

Abstract

The role of non-judicial officers occupies a hidden space in the US judicial system. Statutorily sanctioned in many jurisdictions, such officers have a wide range of duties and responsibilities, including hearing certain pre-trial motions (e.g., NY CPL § 255.20) and making decisions as to conditions of probation for sex offenders (e.g., SDCL § 23A-27-12.1). In many jurisdictions, these officers are frequently not lawyers, and that there is significant evidence that many of the basic rudiments of the criminal trial process are often not honored. There has been virtually no consideration of this phenomenon in either the scholarly literature, and absolutely no consideration from the perspective of therapeutic jurisprudence (TJ), Among TJ’s primary focuses is an inquiry into whether legal rules, procedures, and lawyer roles can or should be reshaped to enhance their therapeutic potential while not subordinating due process principles. This clearly does not happen in the systems under discussion here.