Psychological jurisprudence is of interest to criminal justice ethics because the construct capsulates the interaction between psychology, the law, and ethics. The term appears to have first been coined by Gary Melton in a presidential address to the American Psychology-Law Society at the American Psychological Association in 1991. Psychological jurisprudence may be compared to similar psychology-law vectors and considered in the context of criminal justice ethics.
Psychological jurisprudence is interested in effecting legal change. Psychological jurisprudence applies social science knowledge to link the law— legal rules, doctrines, and procedures—to basic assumptions about human behavior, including individual motivations, cognitions, and decision-making processes. In this joint endeavor, psychology and the law differ. Psychology applies universal laws that predict or explain particular behaviors, whereas the law applies decisions from previous individual cases to the current legal case by way of precedent. While psychology is based on scientific, positivist values (although it rarely acknowledges those values), the law is clearly based on moral, social, and legal values (i.e., normative judgments). However, what law and psychology have in common is a humanistic concern for the values of respect, dignity, and autonomy. Psychology can, therefore, provide the law with a normative framework. A normative framework highlights complex moral, social, and ethical questions and can provide weightings for particular competing values such as those at issue in the question of whether community protection allows involuntary treatment to be applied to serious, high-risk offenders.
Psychological jurisprudence is underpinned by the assumption that the law ought to promote human welfare—to “do good” or “do justice better.” By doing so, the law can resolve disputes fairly, articulate community norms and embedded cultural values, and establish structures that create and sustain prosocial behavior consistent with community values. If the law is to promote human welfare, it needs to do so by systematically examining the social reality of citizens through social science inquiry, psychological mindedness, and acknowledgement of the subjective experience.
Psychological Jurisprudence and Other Vectors
Psychological jurisprudence possesses similar aims to other psychology-law vectors—commonsense justice, therapeutic jurisprudence, restorative justice, and pragmatic psychology. Commonsense justice is based on citizens’ regard for the law and what they consider to be just, fair, and right. Rather than rely on “black letter law,” legal decision making should be informed by the moral and psychological reasoning of its citizens. That is, the conscience of the community is engaged with the law and can be humanizing (although it can also be biased and bigoted). For example, citizens may protest that “stop and search” procedures by police are unfairly influenced by racial profiling. Commonsense justice aims to solidify the law’s legitimacy. Therapeutic jurisprudence considers therapeutic or antitherapeutic effects on well-being in individuals who are in contact with the law (e.g., defendants, witnesses, victims).
Social science is applied to evaluate the law, legal procedures, and roles. For example, social science evidence may indicate that sex offender registries and community notification are antitherapeutic laws, and alternative means to engage sex offenders in rehabilitation may be suggested. Therapeutic jurisprudence supports an ethic of care and does not support paternalism, coercion, or a therapeutic state. Restorative justice is mediated reconciliation of interpersonal conflicts in which dialogue occurs between the injured parties through reintegrative shaming designed to repair the harm without alienating the victim, the community, or the offender. For example, juveniles may agree to provide a regular gardening service after setting a neighbor’s fence on fire.
Finally, pragmatic psychology applies a contextualized perspective to everyday problems (like the law) rather than seeking universal laws (like positivist psychology). Pragmatic psychology first solves individual problems and then directs theory and research—a “bottom up” approach. For example, assessing competence to stand trial in defendants can be enhanced by applying a functional, contextualized, and pragmatic assessment of the defendant’s decision-making capacity. Pragmatic psychology has been suggested as a means to create a “psycholegal lexis”—a peer-reviewed, case-based system of forensic psychology knowledge and experiences.
Psychological Jurisprudence: Examples
The areas of interest to psychological jurisprudence are wide-ranging. Gary Melton suggested that psychological jurisprudence could (1) illuminate the way in which legal principles should be formulated, (2) enhance a sense of community by explicating community vales and prosocial behaviors, (3) clarify variables that affect legal socialization to enhance democratic values, (4) enable legal policy makers to establish structures consistent with human welfare, (5) increase the perceived legitimacy of the legal system and citizen respect for the law, and (6) enhance human rights based on concern for the human condition. Further, Melton suggested that the areas of social science enquiry include (1) mapping the phenomenology or experiences of the law, (2) determining the behavioral assumptions underlying legal decision making, particularly those that are inconsistent with democratic ideals, (3) reforming the law to adapt to cultural differences and social change, (4) providing a knowledge base to enable the most disadvantaged citizens to utilize the law, and (5) understanding the subjective meaning of the law in everyday life from the “bottom-up” perspective of users.
Following are concrete examples of how psychological jurisprudence may guide the criminal justice system in terms of citizen compliance, mechanical restraints in prison, offender rehabilitation, and the community-individual balance.
Citizen motivation to comply with the law is of central interest to psychological jurisprudence. Rather than focus on deterring citizens from breaking the law through the threat of punishment (as social science evidence indicates that this is ineffective), psychological jurisprudence emphasizes citizens’ views of ethical and appropriate behavior (as social science evidence indicates that citizens obey the law if they view the rules as morally legitimate). Compliance with the law occurs because people develop internal values that influence behavior and support self-regulation, and so they obey because they view the rules as morally legitimate, not because they fear punishment. Legal change therefore requires creating a “civic” culture that embodies citizens’ moral intuitions, creates a legal authority trusted by citizens, and provides a set of laws that are applied respectfully to citizens as valued members of the community. This approach has been empirically shown to enhance compliance even if the legal outcome may be against the personal interest of the citizen. That is, it is of greater importance that the process is fair than the outcome favorable.
Mechanical Restraints in Prison
Prisoners are frequently subjected to mechanical restraints (e.g., handcuffs, shackles, chains, leg irons, stun belts, restraint chairs) to ensure compliant behavior, although such restraints should only be applied to prevent serious harm to self or others. Applying mechanical restraints has severe consequences for physical well-being (bruises and lesions, blood clots, and fractured or broken bones) and psychological well-being (panic, delusions, uncontrollable anger, loss of autonomy) and can result in death (commonly by asphyxia). Social science evidence indicates that mechanical restraints are unevenly applied to prisoners according to race, gender, socioeconomic class, and mental disability. A psychological jurisprudence approach to this extreme ethical problem can apply psychology-law vectors framed by an ethic of care. Therapeutic jurisprudence would emphasize that the principal purpose of correctional law and policy is to engage therapeutic potential and not control inmates; they are fellow human beings defined by more than their crimes. Likewise, restorative justice would emphasize interpersonal reconnection with prisoners as humans deserving of compassion (to be morally engaged and assisted to develop moral character) rather than discounted as inhuman and deserving of punishment (to be mechanically restrained). Psychological jurisprudence provides a framework to guide the empirical analysis of ways to prevent the dehumanization of prisoners, and by default, the dehumanization of correctional staff responsible for applying mechanical restraints.
Psychological knowledge provides that human behavior is a function of an interaction between the person (internal characteristics) and his or her environment (external characteristics). In offenders, psychological jurisprudence considers both internal criminogenic characteristics and external criminogenic situations that shape offender views about what is ethical and appropriate to do. Applied to alternative models of justice, crime prevention is considered more effective when contextual, situational, and structural forces that produce offending behavior are addressed.
Rather than merely targeting risk factors within the person, criminogenic risk in both the social context and the developmental history of the offender should also be considered; for example, recognizing the long-term impact of being a victim of child abuse. This approach relies upon a contextual model of the law in which the person-environment interaction is addressed in rehabilitation programs and multisystemic therapies to manage institutional infractions, and to guard against returning unsupported offenders to criminogenic situations. Further, programming is to be delivered within therapeutic communities that creates prison environments conducive to positive change.
On a broader scale, the role of psychological jurisprudence can be considered in balancing the tension between individual autonomy and a sense of community or belongingness that the law may help or hinder. An example is the current “either-or” debate regarding the inclusion or exclusion of serious offenders in or from the community. If the law attempts to extinguish individuality, it will be inevitably resisted. When the law applies general rules or principles to a particular case, it is assumed to be generally fair. However, an idiosyncratic application of the law will be considered unfair, and therefore the value of equity ought to balance the rigid, formal aspects of the law with discretionary common sense. However, this community-individual balance is not always easily facilitated by the law. The law in its current paradigm is considered unhealthy for people, and psychologists may not actually be able to improve the law while it functions as an obstacle to well-being. Psychological jurisprudence can consider how legalism, centralization, hierarchy, and authority will have a more negative impact on individuals than if the law meets the need for autonomy and a sense of community.
Psychological Jurisprudence and Ethics
It has been argued by proponents that psychological jurisprudence distinguishes itself from other psychology-law vectors in that it is based on a moral philosophy of justice, reflecting Aristotle’s virtue ethics. Virtue ethics evaluates ethical behavior on the basis of the virtues that the person holds or their character, balancing thoughts, feelings, and behaviors that culminate in ethical behavior. Virtue ethics considers that all humans seek to flourish, consistent with happiness, and flourishing is best achieved through developing particular virtues or core skills (e.g., empathy, self-awareness, compassion, and optimism). People live virtuously because they are humane and engage in moral decision making, not because of some externally imposed duty or consequence; it is about “being” rather than “doing.”
Therefore, virtue ethics can be contrasted with other normative ethics approaches such as deontology (a duty to follow rules or principles regardless of the potential negative consequences) and consequentialism (the consequences of the act itself make it right or wrong). In the examples regarding vectors above, virtue ethics would suggest that police utilize relational skills with persons of color (commonsense justice), sex offenders are supported by psychologists to make informed decisions to engage in rehabilitation programs (therapeutic jurisprudence), juveniles engage willingly in helpful behavior (restorative justice), and defendants with a mental disability would be heard by both their lawyers and an assessing psychologist (pragmatic psychology). In other words, what would a virtuous person do in these particular situations? Virtue ethics complements an ethic of care. An ethic of care involves an attentive attitude, maximizing opportunities for informed decisions, and taking into account others’ preferences, needs, and social contexts. An ethic of care also considers the person-environment balance. All the psychology-law vectors described here support an ethic of care.
In common with other psychology-law vectors, psychological jurisprudence has humanistic goals that any interaction between citizens and the law ought to be positive rather than negative, that harm should be transcended or overcome, and that the core values of respect, dignity, and autonomy are to be upheld. It has been argued that psychological jurisprudence provides the necessary theoretical framework to realize well-being and excellence, as required by virtue ethics. However, all five vectors can be viewed as supportive of virtue ethics and so are equally capable of providing legitimate normative theories to guide the law in regulating its citizens, balancing community and individual interests, and utilizing a relational approach to enact the core values of respect, dignity, and autonomy.
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