Judging in a Therapeutic Key: Therapeutic Jurisprudence and the Courts

Justice System Journal, 2005 by Leben, Steve

Judging in a Therapeutic Key: Therapeutic Jurisprudence and the Courts, edited by Bruce J. Winick and David B. Wexler. Durham, NC: Carolina Academic Press, 2003.

Professors Bruce Winick and David Wexler have provided the intellectual framework for problem-solving courts with what they have termed "therapeutic jurisprudence." Their latest book, which collects several new essays and edited versions of recently published articles in the area, explores how the principles of therapeutic jurisprudence actually have been applied in the courts.

The book effectively gathers what's currently available about therapeutic jurisprudence-"TJ" to its friends and supporters. And what's available is generally supportive of an ever-expanding use of TJ concepts in the courts. What is lacking in the book, however, are data to support the effectiveness of TJ over alternative procedures and concepts, as well as discussion of several conceptual challenges to TJ.

Before turning to those problems, however, we should review what therapeutic jurisprudence is and how this book delves into it. Winick and Wexler explain the concept of TJ this way: "Its essential premise is a simple one: that the law is a social force that can produce therapeutic or antitherapeutic consequences." These impacts occur through the application of legal rules and procedures, as well as by the conduct of legal actors, like lawyers and judges. "Therapeutic jurisprudence proposes," Winick and Wexler say, "that we use the tools of the behavioral sciences to study the therapeutic and antitherapeutic impact of the law, and that we think creatively about improving the therapeutic functioning of the law without violating other important values, such as . . . due process concerns" (p. 7).

For a simple example, take the case of a criminal defendant at various stages of passage through the court system. If the defendant is arraigned in a mass docket, appearing by video from the jail with audio he cannot understand, one might expect his opening view of the court system to be low. If that is followed by a plea hearing in which the judge shows no real interest in making sure the defendant understands the consequences of what he is doing, and a perfunctory sentencing, one would expect his dissatisfaction or disaffection or both to have grown. Winick and Wexler would call this an antitherapeutic outcome. Drawing on substantial data regarding procedural justice, multiple articles in the book explain how taking time to make sure the defendant truly understands the process from start to finish-and treating all court participants with fairness and respect-has a therapeutic effect, leading to greater satisfaction with the process regardless of the outcome.

Though initially developed independently, TJ concepts have become the theoretical framework for problem-solving courts, now called collaborative-justice courts in California. Problem-solving courts are generally ones with specialized dockets, like domestic-violence courts or drug-treatment courts. They also seek to integrate treatment services with judicial case monitoring, with close supervision and immediate response to unwanted behavior such as violation of domestic no-contact orders or renewed drug use. Judges handling these specialized dockets generally try to get some additional education relevant to the docket through reading or seminars. Drug-treatment-court judges learn about the nature of drug addiction and treatment; domesticviolence-court judges learn about the causes of domestic violence. The expectation, of course, is that the judge will be able to handle these cases more effectively with better background knowledge about the people and problems confronting the court.

The Conference of Chief Justices (CCJ) and Conference of State Court Administrators (COSCA)-effectively the leadership of the state courts throughout the United States-in 2000 adopted a resolution, included in the book, endorsing "broad integration over the next decade of the principles and methods employed in the problem-solving courts into the administration of justice to improve court outcomes while preserving the rule of law, enhancing judicial effectiveness, and meeting the needs and expectations of litigants, victims and the community." The resolution, which came after a task force examined the use of therapeutic jurisprudence in specialized courts, concluded that the use of therapeutic jurisprudence principles, including "ongoing judicial intervention, close monitoring of and immediate response to behavior, multidisciplinary involvement, and collaboration with community-based and government organizations," would enhance court processes and improve public confidence in the courts (pp. 112-14).

The broad collection of essays found in this book provides a helpful and reasonably thorough introduction to the breadth of TJ applications so heartily endorsed by the leadership of the state courts. Separate articles examine TJ's application in drugtreatment courts, mental-health courts, domestic-violence courts, reentry courts (courts that monitor offenders rejoining society following incarceration), and appellate courts. Other articles examine its application in nonspecialized court calendars or look into the underlying principles of TJ, such as how best to encourage offenders to change their behavior through their interaction with the court system.