Therapeutic Jurisprudence Essay

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Therapeutic jurisprudence, a concept developed by David Wexler and Bruce Winick, is used to describe the therapeutic potential of the law. Specifically, therapeutic jurisprudence is a philosophy of law suggesting that legal rules, legal procedures, and roles of various actors in the legal and criminal justice systems can provide therapeutic or antitherapeutic consequences to both offenders and victims of crime.

The interdisciplinary concept originated with renewed interest in mental health law scholarship in the 1990s. Coinciding with growing recognition of the need to protect the personal and constitutional rights of mental health patients in the criminal courts, there was a noticeable intersection between mental health law and the criminal law. This led to integrating academic mental health scholarship with various facets of the criminal justice system. Evidence-based practices borrowed from psychology, sociology, criminology, social work, and psychiatry were examined and applied to mental health law.

Issues such as the insanity plea, lowered intelligence quotient (IQ), competency to stand trial, and various forms of mental illness intersected with the aims of therapeutic jurisprudence. Therapeutic jurisprudence later expanded to include the criminal law, family law, juvenile law, drug courts, domestic violence courts, problem-solving courts, and disability law. The perspective has also been applied to corrections, health care, homelessness, tort reform, and contract law.

Therapeutic jurisprudence places emphasis on the psychological and sociological potential of the law, legal processes, and practices. This includes the mental, emotional, behavioral, and social benefits the law can provide for both victims and offenders. The framework examines the ways the system works to assist individuals with recovery, and works toward an improved state of mental well-being. A wide body of research finds that paying attention to victims’ emotional well-being promotes victim recovery; this is a central tenet of therapeutic jurisprudence. Yet, therapeutic jurisprudence maintains that justice and legal systems not only hold therapeutic potential but hold antitherapeutic potential as well. The therapeutic jurisprudence perspective emphasizes that justice and legal systems can either positively or negatively impact the mental health and general sense of well-being of those who enter the system. Specifically, therapeutic jurisprudence holds that victims and offenders can be revictimized in the system, and measures should be taken to avoid such revictimization.

While providing therapeutic benefits to victims and offenders, importantly, therapeutic jurisprudence assumes  a complementary approach to upholding justice and due process of the law; it does not hold that therapeutic endeavors should supersede the law. Legal processes can be therapeutic without having a negative impact on society and while concurrently upholding principles of justice. For example, problem-solving courts analyze the seriousness of a crime and look for an appropriate sentence while simultaneously exploring  treatment options  that  can rehabilitate an offender. This provides benefits to both the offender and society. If the offender is rehabilitated, conceptually, he or she is less likely to reoffend and those in society are less likely to be victimized by this offender. At the same time, the offender receives an appropriate sanction in order to uphold principles of justice and due process. Consequently, therapeutic jurisprudence may be viewed as a combination of retribution, deterrence, and rehabilitative practices.

Therapeutic Practices of Lawyers, Judges, and Others

Further, therapeutic jurisprudence relates to the practices  of actors  within  the justice system. The primary  actors  to be considered  include victims and offenders, yet the concept may also be applied to other actors in the system, such as lawyers, attorneys, advocates, judges, social workers, court staff, or police. The central idea is that the practices of such actors should maximize therapeutic potential and minimize dynamics that could potentially lead to revictimization or other negative elements that could be construed as negatively impacting the psychological well-being of those involved.

For example, the concept of therapeutic jurisprudence has been used to suggest that lawyers can be catalysts for therapeutic benefits. Practices of lawyers that are consistent with therapeutic jurisprudence include listening to clients, showing care and concern for clients’ cases and needs, and showing that they value the emotional state and outcomes of their clients in addition to addressing their legal needs. At the same time, lawyers who do not work for the self-interests of their clients, do not show care and concern for their cases and needs, or those who do not acknowledge the emotional well-being of their clients may serve to revictimize their clients.

Judges are also key actors to the therapeutic benefits of the legal system. For example, in the domestic violence courts, judges who show respect, care, and concern for victims of abuse can facilitate feelings of well-being among such victims. In contrast, judges who blame victims for their own abuse or minimize their abuse are not realizing the potential of therapeutic jurisprudence and instead are further revictimizing victims. In addition, it has been found that judges’ attitudes and behaviors toward offenders in sentencing can impact the extent to which the offenders will comply with that sentence and receive the intended therapeutic benefits of the sentence. For example, if a sentence involves release into a halfway house, where the offender is required to comply with curfew and other rules, the judge’s behavior at the time of sentencing may actually impact the offender’s compliance with such rules. This largely involves whether the judge can effectively convey what is expected of the offender. Aside from lawyers and judges, therapeutic jurisprudence has more recently been applied to social service providers and court staff who work within the justice system.

Therapeutic Moments

Another  core concept  of therapeutic jurisprudence is that the legal system can provide therapeutic moments for offenders or victims through legal processes. As an example of a therapeutic moment for a victim, when a victim of domestic violence is able to declare in open court that she or he is a victim of abuse, it is an empowering moment.  First, victims of abuse generally keep their abuse hidden and bear their abuse largely on their own. When given the opportunity to tell their story in open court, victims are acknowledging their abuse and victimization, they may feel that the community is behind them in seeking justice, and there is acknowledgement that the offenders’ behavior is not condoned by the community or the courts. In contrast, if a judge does not allow victims of domestic violence to tell their stories or to acknowledge their abuse in open court, the therapeutic benefit is lost.

Such therapeutic moments in the legal system can apply to offenders as well as victims. For example, in the drug courts a potentially therapeutic moment for an individual whose offense is related to drugs or alcohol may occur if the offender must acknowledge his or her addiction in court. Those with alcohol or drug addictions generally deny their addiction; this denial of addiction is a barrier to rehabilitation. When an addict is required by a judge to acknowledge they have a problem with drugs or alcohol, it potentially results in a therapeutic moment. In contrast, if a judge accepts a plea, or does not require an open admission of addiction from the offender, the therapeutic moment is lost.

Another tenet of therapeutic jurisprudence revolves  around the  therapeutic or  antitherapeutic potential of legal rules. For example, with implementation of mandatory minimum sentences, drug-related arrest and incarceration rates rose dramatically. Incarcerating addicted people may be viewed under principles of therapeutic jurisprudence as further victimizing people who are already victims through their addictions. With recognition of the antitherapeutic consequences of incarceration in such circumstances, drug treatment courts developed with the aim of providing rehabilitative measures along with punitive sentences to reduce reoffending and to provide therapy to addicted people.

There are some concepts  that  overlap  with the therapeutic jurisprudence perspective. For example, procedural justice upholds the concept of fairness, the transparency of decision making, and that victims and offenders should both have a voice in legal proceedings. It relates to therapeutic jurisprudence insofar as its focus on “voice” lends itself to rehabilitative outcomes. Similarly, survivor-defined/victim-centric practices involve listening to survivors’ accounts of their individual cases to determine  their specific needs and goals, and providing resources and information to address such needs and goals. The positive outcomes resulting from survivor-defined approaches are  linked  to  empowerment and  well-being, and thus coincide with the goals of therapeutic jurisprudence.

Bibliography:

  1. Bennett, L. and Lisa Goodman. “Through the Lens of Therapeutic Jurisprudence.” Journal of Interpersonal Violence, v.25 (2010).
  2. Hora, Peggy, William Schma, and John Rosenthal. “Therapeutic Jurisprudence and the Drug Treatment Court Movement: Revolutionizing the Criminal Justice System’s Response to Drug Abuse and Crime in America.” Notre Dame Law Review, v.74 (1999).
  3. Stolle, Dennis, David Wexler, and Bruce Winick. Practicing Therapeutic Jurisprudence: Law as a Helping Profession. Durham, NC: Carolina Academic Press, 2000.
  4. Wexler, David. Rehabilitating Lawyers: Principles of Therapeutic Jurisprudence for Criminal Law Practice. Durham, NC: Carolina Academic Press,
  5. Wexler, David and Bruce Winick. Law in aTherapeutic Key: Developments in Therapeutic Jurisprudence. Durham, NC: Carolina Academic Press, 1996.
  6. Winick, Bruce and David Wexler. Judging in a Therapeutic Key: Therapeutic Jurisprudence and the Courts. Durham, NC: Carolina Academic Press, 2003.

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