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The Use of Therapeutic Jurisprudence in Law School Clinical Education: Transforming the Criminal Law Clinic
Abstract
This article describes how therapeutic jurisprudence, and the therapeutic jurisprudence/preventive law model, can be imported into legal education and practice. Although the approach can (and does) find application in a broad spectrum of legal areas, the present article focuses on the criminal law clinic and on training future criminal lawyers with an expanded professional role: one that explicitly adds an ethic of care and considerations of rehabilitation. As such, it brings an interdisciplinary perspective into clinics and law practice, with particular emphasis on insights and techniques drawn from psychology, criminology, and social work. The article explores a therapeutic jurisprudence framework for thinking about criminal law competencies, and illustrates the explicit use of the expanded professional role in the area of sentencing, in juvenile parole revocation proceedings, and in a tribal reentry court project.
... Much of what the magistrate-judge does has an impact on the psychological well-being or emotional life of persons aff ected by the law. This can include both long-term therapeutic and anti-therapeutic eff ects (Wexler, 2008(Wexler, , 2011(Wexler, , 2013Winick and Wexler, 2006). The anti-therapeutic eff ect of the current juvenile-justice system on young persons in Native communities needs signifi cantly more att ention (Wexler, 2008(Wexler, , 2011(Wexler, , 2013Winick and Wexler, 2006). ...
... This can include both long-term therapeutic and anti-therapeutic eff ects (Wexler, 2008(Wexler, , 2011(Wexler, , 2013Winick and Wexler, 2006). The anti-therapeutic eff ect of the current juvenile-justice system on young persons in Native communities needs signifi cantly more att ention (Wexler, 2008(Wexler, , 2011(Wexler, , 2013Winick and Wexler, 2006). ...
... In short, there is currently litt le, if any, positive relationship established between Native young people and the legal institutions in Alaska. Moreover, standard legal practices, including detention, arrest, and litigation, produces psychological resistance, denial, minimization, rationalization and essentially reward identifi cation with thugs and bullies (Wexler, 2008(Wexler, , 2011(Wexler, , 2013Winick & Wexler, 2006). Contemporary legal structures encourage antisocial behaviour among young people by facilitating social cohesion between troubled youths within so-called "treatment centres"-centres that are built and maintained, for political expediency, far from the local communities to which these young off enders must inevitably return. ...
The current study reviews the comparative successes of two restorative justice programs in Alaska, namely, the Upper Tanana Wellness Program and the Circle Peacemaking Program in Kake, Alaska. In an analysis of the two case studies, the authors develop nine principles useful to those interested in developing restorative-justice programs. The authors recommend an Indigenous community-based approach consistent with practice in the field of Dispute Systems Design.
... Esta perspectiva requiere, como proponen Lynch y Perlin (2021), convocando a Brookbanks (2001), transformar el pensamiento ético respecto el papel que deben desempeñar la ley y los profesionales (Bulgado-Benavides et al., 2024). A este respecto, los padres de la TJ, Winick y Wexler (2007) precisaron que la Justicia Terapéutica apoya una ética del cuidado (Perlin, 2017). ...
... Critical Legal Studies (CLS), a school of legal thought developed in the 1970s in the United States and now practised in countries like New Zealand, was born in the United States (Danny Priel, 2007;Saiman, 2007). The Critical Legal Studies (CLS) movement seeks to expose and counteract discriminatory or unfair legal practises by challenging the implicit biases and underlying assumptions that shape the legal system (MacCormick, 2007;Winick & Wexler, 2006). CLS has a major effect on the growth of both legal theory and practise in New Zealand (Pearce, 2006;Vranes, 2006). ...
This scholarly exposition endeavors to furnish a succinct panorama of the prominent theoretical frameworks that have wielded substantial influence upon the intricate tapestry of legal systems pervading global jurisprudence. It meticulously proffers a comprehensive spectrum of aspirations and perspectives emblematic of the scholastic and practical echelons within the ambit of comprehending the raison d’être of law in the societal milieu. The exegesis is meticulously dissected, delineating the contrasting paradigms of formalism and originalism, both of which underscore the salience of jurisprudential standards and axioms. Formalism, an erstwhile doctrine, predicates its tenets on an unwavering obeisance to the strictures of legal texts and precedents, irrespective of the contextual crucible of social or political exigencies. A conspicuous dissonance with the cherished tenet of the rule of law emerges within this doctrinal precinct. On the converse, originalism proclaims its allegiance to the discernment of legal texts predicated upon the unblemished fidelity to the intentions of their progenitors or framers. In the latter precinct of this paper, a panoply of paradigms surfaces, comprising pragmatism, legal pluralism, and restorative justice. Each represents an ideational crucible advocating for malleability, adaptability, and pliancy within the juridical edifice. The salient tenet of pragmatism proclaims that legal precepts find their zenith when they are amenable to contextual re-calibration. Legal pluralism, in contrast, posits a milieu wherein manifold legal systems coexist, each espousing its unique norms and canons. Proponents of restorative justice are imbued with the belief that the purpose of legal strictures should transcend retribution, instead aspiring to the reparation of fractured trust and interpersonal ties. The latter segment of this research diorama scrutinizes an amalgam of theories encompassing social contract theory, procedural justice, distributive justice, and substantive justice. These ontologies present a kaleidoscope of stratagems designed to engender equity and rectitude within the legal apparatus.
... , les attentes qu'ils peuvent avoir, les risques de pathologie liées à la contradiction de leur pratique par rapport à leurs attentes (Benjamin et al., 2006), ou, au contraire, le bien-être ressenti lorsque celles-ci sont en phase (Krieger et Sheldon, 2015). Ceci a également conduit à examiner avec un regard fortement critique la formation dans les facultés de droit anglophones (O'Brien, 2011 ;Winick et Wexler, 2006), lesquelles conduisent à un haut niveau de stress et de dépression (par ex. Mertz, 2007). ...
The purpose of this study is to measure the implementation of a 2014 Act creating a McDonaldised "early release under constraint" procedure - i.e. bad fast early release devoid of reentry work or support, this in four Northern France jurisdictions.
Cette recherche portait sur la procédure de libération sous contrainte (LSC) de l’article 720 du C. pr. pén. créée par la loi n° 2014-896 du 15 août 2014. L’article 720 représentait la troisième tentative de création d’une procédure écartant le débat contradictoire (DC) en pensant ainsi favoriser le prononcé d’aménagements de peine. Les deux précédentes avaient échoué sur ce point. Notre méthodologie a été « grounded in theory », mais « réaliste », soit élaborée empiriquement dans le cadre de théories éprouvées et visant, de manière ultime, à proposer une nouvelle théorie. Nous avons ainsi proposé une théorie cadre permettant de lier l’ensemble des théories pertinentes. Celles-ci ont emprunté au droit, à la criminologie, aux sciences politiques et sociologiques, à la psychologie, voire parfois à l’économie, à la philosophie ou à la médecine. L’étude a commencé par une analyse juridique de la LSC : procédure et non mesure. Sur le plan empirique, elle a consisté en deux années et demie d’observation des audiences contradictoires (DC) et commissions de l’application des peines (CAP)-LSC, et d’entretiens avec les praticiens et avec des personnes condamnées en sortie de CAP-LSC. Ce travail a été réalisé outre nous-même par vingt-deux étudiants de Master ainsi que d’un doctorant tous formés aux protocoles établis et monitorés. Nous avons également analysé des rapports de CPIP et des jugements et ordonnances de JAP.
Une première question a porté sur la réussite ou, au contraire, de l’échec de la mise en œuvre de la procédure de LSC et notamment en nombre d’aménagements de peine. L’analyse des données a été menée grâce aux théories de l’implémentation et celles relatives à la diffusion de l’innovation. L’ensemble des critères mis en lumière par ces théories a permis de comprendre pourquoi la LSC ne pouvait que constituer un échec, ce que nos données locales, ainsi que des données nationales (Delbos, 2016) ont confirmé.
Nous avons, en deuxième lieu, observé les situations procédurales (DC, CAP-LSC avec et sans comparution) à l’aune du paradigme LJ-PJ-TJ (légitimité de la justice, justice procédurale, jurisprudence « thérapeutique »), mais aussi des théories de la compliance et de l’autonomie. L’analyse sur ce point a hélas confirmé que les situations de LSC sans comparution et, à un moindre degré, avec comparution offraient un contexte violant fortement – la personnalité du JAP pouvant réduire l’impact nocébo – les principes d’une justice respectueuse et légitime. Les entretiens avec les condamnés ont confirmé la colère qu’ils pouvaient en ressentir. La littérature empirique LJ-PJ-TJ nous enseigne que, plus gravement, la conséquence risque d’en être une très faible compliance, voire une résistance ainsi que de la récidive. La conclusion sur ce point est que le respect procédural est une arme criminologique qu’il est dangereux d’écarter.
Enfin, nous nous sommes interrogée sur la question à la fois théorique et pratique de l’accompagnement des sortants de détention et avons questionné le choix d’aménagements de peine obtenus de manière rapide et sans exigence substantielle. Le législateur en pensant « simplifier » les procédures a confondu emballage juridique et contenu : on ne peut faire l’économie d’une préparation de la sortie et d’un projet viable pour les justiciables et pour la société, ni d’un traitement criminologique adapté ; c’est au demeurant le sens des recommandations de l’ONU. Tant les praticiens qui donnent leur avis, que les JAP qui se prononcent, que les condamnés ainsi non accompagnés, rejettent en majorité des processus dénués de contenu. Au surplus, le temps de CPIP serait mieux utilisé à préparer de manière substantielle des projets de sortie plutôt qu’à produire des écrits de manière industrielle. Le cœur de leur métier devrait être le traitement criminologique et multi-partenarial et la transition qualitative avec le monde libre.
... 33, p 535), and supports "an ethic of care" (Ref. 34, pp 605-07). ...
It is absolutely essential to consider the abject ineffectiveness of counsel in a significant number of death penalty cases involving defendants with serious mental disabilities and how such ineffectiveness is often (scandalously) accepted by reviewing courts. We must also assess all of the concerns raised in this excellent paper by Hiromoto and colleagues through the filter of therapeutic jurisprudence as a way to guide counsel to thoroughly investigate all aspects of such cases (especially those involving defendants with PTSD) and to present substantial mitigating evidence to the fact finders in the sorts of cases the authors are discussing.
... Through working as part of interdisciplinary teams, social work students bring the "perspectives, values, and experiences of the social work profession" (NASW Code of Ethics 2017, "2.03 Interdisciplinary Collaboration") to the table, essentially instilling these concepts into law students. Winick and Wexler (2006) speak to the significance of lawyers practicing in a manner to increase clients' wellbeing and reduce clients' risk of negative psychological consequences as a result of their legal services. The authors refer to such practice as therapeutic jurisprudence and identify its characteristics as mirroring those skills frequently taught in the social work curriculum but not readily available in the law school curriculum. ...
The Council on Social Work Education tasks social work programs to ensure students illustrate competency with regard to advocating for and advancing human rights. Given the three generations of human rights experience differing levels of guarantee and protection, multiple tools are needed in order to advance human rights across the board. As human rights cannot be sufficiently realized until they are protected by law, many of those tools are made more useful when combined with knowledge of the legal system and processes. Advocacy is a key aspect of social work practice, and therefore social work education provides a solid foundational understanding on the legislative branch of government. However, as all three branches of government have the ability to impact human rights law, social work programs are advised to integrate more opportunities for students to learn about the judicial and executive branches as well. Recognizing that not all programs are positioned to inject forensic social work education into their curriculum, an interprofessional practicum model that integrates social work students into university legal clinics is provided.
... Through working as part of interdisciplinary teams, social work students bring the "perspectives, values, and experiences of the social work profession" (NASW Code of Ethics, 2017, "2.03 Interdisciplinary Collaboration") to the table, essentially instilling these concepts into law students. Winick and Wexler (2006) speak to the significance of lawyers practicing in a manner to increase clients' wellbeing and reduce clients' risk of negative psychological consequences as a result of their legal services. The authors refer to such practice as therapeutic jurisprudence and identify its characteristics as mirroring those skills frequently taught in the social work curriculum but not readily available in the law school LEGAL EDUCATION FOR HUMAN RIGHTS WORK 12 curriculum. ...
The Council on Social Work Education tasks social work programs to ensure students illustrate competency with regard to advocating for and advancing human rights. Given the three generations of human rights experience differing levels of guarantee and protection, multiple tools are needed in order to advance human rights across the board. As human rights cannot be sufficiently realized until they are protected by law, many of those tools are made more useful when combined with knowledge of the legal system and processes. Advocacy is a key aspect of social work practice, and therefore social work education provides a solid foundational understanding on the legislative branch of government. However, as all three branches of government have the ability to impact human rights law, we advise social work programs to integrate more opportunities for students to learn about the judicial and executive branches as well. Recognizing that not all programs are positioned to inject forensic social work education into their curriculum, we discuss an interdisciplinary practicum model that integrates social work students into university legal clinics.
... 50 TJ thus supports an ethic of care. 51 ...
... 109 TJ supports an ethic of care. 110 One of the central principles of therapeutic jurisprudence is a commitment to dignity. 111 Professor Amy Ronner describes the 'three Vs': voice, validation, and voluntariness, 112 arguing that: ...
This chapter examines Article 14 of the United Nations Convention on the Rights of Persons with Disabilities (CRPD), which deals with the fundamental right to liberty and security. It traces the legislative history of Article 14 and, in an analysis of its provisions and interpretations, seeks to understand its application in light of these complexities. The right to liberty of person and the right to security of person have been described as two aspects of the same right, physical liberty being the substantive aspect and security the means of protection or the procedural aspect. The ‘liberty and security’ clause of this article empowers the Committee on the Rights of Persons with Disabilities ‘to question governments on a broad range of potential violations, including civil commitment proceedings, compulsory medical treatment, and conditions inside medical and detention facilities’.
... ily, along with an application process of uncertain length and outcome, can produce the very negative emotional reactions or psycho-legal soft spots which can cause problems in the relationship between the refugee and the legal system and its actors. This, as evidenced by Wexler and Winick (2006), can produce a psychological resistance and other defence mechanisms that prevent the refugee from effectively articulating their story, their needs and their interests. These are crucial in refugee family reunion applications. ...
This paper aims to highlight some of the key issues surrounding the development and application of immigration law as it applies in the United Kingdom (UK) to refugees attempting to be reunited with their families living abroad. The right for refugees to be reunited with their families is enshrined in international law, but this is frequently frustrated by the legal and administrative systems used in the UK. Using content analysis and doctrinal analysis techniques,the paper provides an examination of how a philosophy which considers the emotional effects of the law, therapeutic jurisprudence, could be used not only to inform interpretation of current domestic laws, but also influence the drafting of future legislation. This is an aspect of current refugee law in the United Kingdom which has yet to be examined. It provides, we argue, a humanitarian direction to statutory interpretation which may provide tangible benefits to current and proposed legal systems.
... One of the most important legal theoretical developments of the past two decades has been the creation and dynamic growth of TJ (Wexler, 1990;Winick & Wexler, 2006). TJ presents a new model for assessing the impact of case law and legislation, recognizing that, as a therapeutic agent, the law can have therapeutic or anti-therapeutic consequences (Perlin, 2009, p. 912). ...
The right to counsel is a fundamental right for individuals facing criminal processes and involuntary civil commitment. However, individuals with serious mental illnesses are subject to many community proceedings (e.g., being taken by law enforcement to a crisis drop-off center) where counsel is not available. We argue that, unless meaningful counsel is provided in such situations, the cycle of arrest, hospitalization, and stays in the community will continue for these individuals, who are among some of the most disenfranchised citizens in the nation and are often without any meaningful voice.
... Asimismo, los tribunales de familia buscan el asesoramiento para mejor comprender las situaciones familiares y disponer las mejores opciones que protejan los derechos de sus miembros. El involucramiento de la justicia con los temas de la salud mental fue creciendo y estrechándose, tanto que en algunos países se establecieron cortes específicas y se desarrollaron paradigmas de jurisprudencia terapéutica (Christie, 2010;Frailing, 2010;Sarteschi, Vaughn & Kim, 2011;Schma, Kjervik & Petrucci, 2005;Winick & Wexler, 2006). El desarrollo de estos servicios tiene gran relevancia, pues sus efectos trascienden a la administración de justicia e influyen concretamente en el bienestar social, sea promoviendo el respeto de los derechos, previniendo victimizaciones o reforzando la autonomía de los ciudadanos. ...
Introduction: Forensic mental health systems include relevant university services for the prevention of violence and the protection of human services. Objectives: Describe the service offered by the"Instituto de Criminologia, Criminalística e Intervencion Psicosocial Familiar" of the Universidad de Cuenca, Ecuador. Material and methods: A study with a mixed design, a descriptive quantitative section with a consecutive series of cases admitted to the Institute between 01/01/2015 and 30/06/2015, and a qualitative one including its dossier exploration. Results: 52 persons were admitted to the institute during that period. 72 individuals with an average age of 22.6 years and an equitable distribution by genders were analyzed in that period. 88.5 % had an intervention requirement. The main subjects detected on a qualitative basis were"domestic violence","child protection","youth protection","protection of the disabled", assistance to victims of sexual abuse","direct community consultation","strengths and weakness of expertise services", and"alcohol consumption". Conclusions: Both evaluated and assisted individuals exhibit complex problems relating to violence and its negative effects. The Institute offers services to judicial and municipal institutions, and directly to the community itself. It is an excellent source of academic experience.
... One of the most important legal theoretical developments of the past two decades has been the creation and dynamic growth of TJ (Wexler, 1990;Winick & Wexler, 2006). TJ presents a new model for assessing the impact of case law and legislation, recognizing that, as a therapeutic agent, the law can have therapeutic or anti-therapeutic consequences (Perlin, 2009, p. 912). ...
... 123 That is, therapeutic jurisprudence supports an ethic of care. 124 Therapeutic jurisprudence and its practitioners place great importance on the principle of a commitment to dignity. 125 Professor Amy Ronner describes the 'three Vs': voice, validation and voluntariness, 126 arguing: ...
p> I begin by sharing a bit about my past. Before I became a professor, I spent 13 years as a lawyer representing persons with mental disabilities, including three years in which my focus was primarily on such individuals charged with crime. In this role, when I was Deputy Public Defender in Mercer County (Trenton) NJ, I represented several hundred individuals at the maximum security hospital for the criminally insane in New Jersey, both in individual cases, and in a class action that implemented the then-recent US Supreme Court case of Jackson v Indiana, that had declared unconstitutional state policy that allowed for the indefinite commitment of pre-trial detainees in maximum security forensic facilities if it were unlikely he would regain his capacity to stand trial in the ‘foreseeable future.’
I continued to represent this population for a decade in my later positions as Director of the NJ Division of Mental Health Advocacy and Special Counsel to the NJ Public Advocate. Also, as a Public Defender, I represented at trial many defendants who were incompetent to stand trial, and others who, although competent, pled not guilty by reason of insanity. Finally, during the time that I directed the Federal Litigation Clinic at New York Law School, I filed a brief on behalf of appellant in Ake v Oklahoma, on the right of an indigent defendant to an independent psychiatrist to aid in the presentation of an insanity defence. I have appeared in courts at every level from police court to the US Supreme Court, in the latter ‘second-seating’ Strickland v Washington. I raise all this not to offer a short form of my biography, but to underscore that this article draws on my experiences of years in trial courts and appellate courts as well as from decades of teaching and of writing books and articles about the relationship between mental disability and the criminal trial process. And it was those experiences that have formed my opinions and my thoughts about how society’s views of mental disability have poisoned the criminal justice system, all leading directly to this paper, that will mostly be about what I call ‘sanism’ and what I call ‘pretextuality’. The paper will also consider how these factors drive the behaviour of judges, jurors, prosecutors, witnesses, and defence lawyers, whenever a person with a mental disability is charged with crime, and about a potential remedy that might help eradicate this poison.
It is essential that lawyers representing criminal defendants with mental disabilities understand the meanings and contexts of sanism and pretextuality and to show how these two factors infect all aspects of the criminal process, and offer some thoughts as to how they may be remediated. I believe – and I have been doing this work for over 40 years – that an understanding of these two factors is absolutely essential to any understanding of how our criminal justice system works in the context of this population, and how it is essential that criminal defence lawyers be in the front lines of those seeking to eradicate the contamination of these poisons from our system.
*Please note this is an invited paper - ie. not peer reviewed*
</p
... Barriers cited by MacDonald in 1958 were probably still relevant, including needing time and money to develop interdisciplinary courses as well as philosophical arguments about whether the tenets of psychology fit into the legal curriculum (Kalven, 1958). Many rejected these concerns with assertions that psychology training can (a) increase law schools' tuition income by attracting students interested in psychology and (b) raise law students' awareness of important psychological issues that arise in legal settings (Ciccone & Jones, 2012; Melton, Monahan, & Saks, 1987;Winick & Wexler, 2006). Other articles provide examples of the successful integration of psychology into specific law programs including the University of California Los Angeles (Price & McCreary, 1976), University of Wisconsin (Trubek & Plager, 1985), Indiana University (Trubek & Plager, 1985), and Indiana University- (2009) reported an evaluation, however, revealing differences between law and psychology professors in awareness and emphasis of various ethical issues (i.e., confidentiality, risk of subpoena, consent). ...
The field of psychology and law, including forensic psychology, is an exciting concentration of research activity and student training and has grown rapidly, but to what extent have teaching and training efforts in the field been systematically catalogued and evaluated? We conducted a historical review and content analysis of the American and Canadian literature on the scholarship of teaching and training in the field. This review catalogs (a) information related to the development of training and teaching, (b) descriptions of programs and courses at various levels, and (c) articles on teaching resources or techniques in this field. We hope it serves as a useful guide to the literature resources for those in the field and a catalyst for future interest in this area of scholarship, especially for future evaluations of teaching and training.
... Legal education has been the subject of many reform efforts, especially over the last 20 years. Paralleling many of our participants' suggestions, there have been movements toward more experiential and engaged learning opportunities around reflection, emotionality and psychological issues, as well as contemplative practices (Magee, 2011;Newton, 2010;Rhee, 2011;Winick & Wexler, 2006). Education on how people from different cultures experience courtroom communication, for instance, can help trial judges to impart decisions to better help litigants accept decisions. ...
Following a call for nominations of judges who demonstrated legal wisdom in their decision-making and over 250 nominations being received, 11 judges who were nominated multiple times were interviewed about the ways the development of legal wisdom is supported and hindered within educational and professional systems. A grounded theory analysis was conducted. Findings emphasized that wisdom is promoted by avoiding exclusively adversarial learning models, engaging in training via lived experience in clinics, mentoring, and self- and cultural-reflection to develop contextualized thinking. Judges described challenges related to isolation, being in underresourced systems, and being in elected positions. This study sheds light upon how judges learn to consider multiple sets of values when forming wise decisions.
... As I have previously noted, such a legal structure-or "bottle"-would allow for tribal judges to function as a type of "reentry court," and that, in TJ terms, should allow for the type of "relationship-developing" that would likely be unwieldy if a multiple-member board were the decision-maker. (Winick & Wexler, 2006). Accordingly, a tribal reentry court would be an excellent component of a TJ mainstreaming project, and could tap into important developments in tribal healing-to-wellness courts (Flies-Away & Garrow, 2013). ...
... In recent years, this emerging model has begun to penetrate legal education. 164 Wexler notes that some defence lawyers in the United States are refusing to represent clients, such as those repeatedly caught driving under the influence, unless they agree to a therapeutic jurisprudence approach, accept responsibility for their actions and undertake treatment for addiction, although there is no evidence to suggest that this practice is not being replicated in Australian courts at this stage. 165 The role of the defence lawyer shifts towards a search for an outcome that would improve the likelihood of clients not returning to court due to the fact ...
... 329-30). That is, therapeutic jurisprudence supports an ethic of care (Winick & Wexler, 2006, pp. 605-07). ...
Traditionally, disability was not regarded as a human rights issue. As recently as 19 years ago, it was not so broadly acknowledged. Although there had been prior cases decided in the United States and in Europe that, retrospectively, had been litigated from a human rights perspective, the characterization of "disability rights" (especially the rights of persons with mental disabilities) as a social issue was not discussed in a global public, political, or legal debate until the early 1990s. Instead, disability was seen only as a medical problem of the individual requiring a treatment or cure. By contrast, viewing disability as a human rights issue requires us to recognize the inherent equality of all people, regardless of abilities, disabilities, or differences, and obligates society to remove the attitudinal and physical barriers to equality and inclusion of people with disabilities. The ratification of the United Nations Convention on the Rights of Persons with Disabilities (CRPD) forces us to restructure our views of the rights of this population, and requires us to come to grips with a history of mistreatment, stigmatization, and marginalization. In this context, it is necessary to focus on the important issue of dignity. As ratified, the Convention calls for “respect for inherent dignity.” The Preamble characterizes "discrimination against any person on the basis of disability [as] a violation of the inherent dignity and worth of the human person...." And these provisions are consistent with the entire Convention’s rights-based approach focusing on individual dignity, placing the responsibility on the State to tackle socially created obstacles in order to ensure full respect for the dignity and equal rights of all persons. A dignitary perspective compels societies to acknowledge that persons with disabilities are valuable because of their inherent human worth.The test of whether the CRPD will have authentic meaning or will be little more than a “paper victory” will be whether, as a result of the ratification of the Convention, persons with mental disabilities – especially institutionalized persons with mental disabilities (both those institutionalized civilly and those in forensic facilities)– are, in fact, treated with that level of dignity that they are owed as a key component of international human rights law. It is far too early to come to any conclusions, but the question will be before us for the indefinite future.In this chapter, I first consider the growth of disability rights as a civil liberties issue over the past two decades. Next, I look at the concept of “dignity” both in a criminal justice and disability context. I then examine the UN Convention and evaluate it as a means of insuring dignity to the population in question. Following this, I examine the concepts of sanism and pretextuality in an effort to better explain why the current state of affairs has developed as it has in the context of the universal factors that permeate the practice of mental disability law worldwide. After that, I evaluate these issues through the prism of therapeutic jurisprudence (TJ). I conclude by discussing the interplay between the forensic mental health system, international human rights and mental disability law from a TJ perspective.
... In its aim to use the law to empower individuals, enhance rights, and promote well-being, therapeutic jurisprudence has been described as " a sea-change in ethical thinking about the role of law a movement towards a more distinctly relational approach to the practice of law which emphasises psychological wellness over adversarial triumphalism" (Brookbanks 2001: 329-30). That is, therapeutic jurisprudence supports an ethic of care (Winick & Wexler 2006: 605-607, Wexler 2007: 599, Baker 2006. ...
The ratification of the United Nations Convention on the Rights of Persons with Disabilities (CRPD) radically changes the scope of international human rights law as it applies to all persons with disabilities. It is most significantly changed in the area of mental disability law. Always marginalized, individuals with mental disabilities have always been “outsiders” in the world of international human rights law, with many important global human rights agencies traditionally expressing little or no interest in the plight of this cohort. Internationally, persons in forensic mental health systems generally receive, if this even seems possible, less humane services than do civil patients. Prisoners with mental disabilities are treated inhumanely in most nations, both in correctional facilities and in forensic mental health facilities. Advocates have begun to consider whether the CRPD can potentially remediate this situation, but ratification is too recent to see much concrete change. One potential remedy lies in the expanded use of mental health courts as a means of 1) infusing therapeutic jurisprudence (TJ) into the legal process; 2) assuring that the standards of the CRPD are met; and 3) treating persons with mental disabilities with dignity in the court process. There are now multiple mental health courts in the United States, as well as others in Canada, the United Kingdom and Australia, but few in civil law nations. Advocates should seize upon the ratification of the CRPD as a launching pad for an international movement to create such courts to emulate the successes of those in common law nations that have operated with dignity using a TJ model while adhering to civil rights and civil liberties principles. This chapter seeks to explore the intersection between international human rights and the mental health court movement. I begin here, however, with a cautionary note. Notwithstanding the potential great value that mental health courts have for persons with mental disabilities involved in the criminal justice system, it is essential that these courts do not lose their original focus as therapeutic jurisprudence-based courts, and that judges and court administrators resist the temptation to use these courts as coercive vehicles through which to simply expedite case dispositions without any meaningful attention being paid to issues of civil rights, civil liberties, dignity and autonomy. This warning underscores the importance of the responsibility on mental health court judges and administrators to consider the impact of the CRPD – and international human rights law, in general -- on the operation of these courts, especially regarding issues of potentially coercive treatment.It is time to restructure the dialogue about mental health courts and to (1) consider whether the development of such courts will finally allow us to move away from society’s predominant opinion that mental illness reflects a defect of morality or will, (2) take seriously the potential ameliorative impact of such courts on the ultimate disposition of cases involving criminal defendants with mental disabilities, (3) assess the impact that such courts might have on the extent to which individuals are treated with dignity in the court process.I remain a strong supporter of mental health courts but believe firmly that supporters must do a better job of responding to some of the critiques of the courts (especially those coming from what I will somewhat-awkwardly characterize as the “political left.” As I will discuss below, the critiques that, I believe, have the most merit are these: that these courts may provide “false hope” to those who come before them, and that the success of the courts is overly-dependent on the personal charisma of the presiding judge. I believe that our “culture of blame” still infects the entire criminal justice process, and that it continues to demonize persons with mental illness for their status. Until this is remediated, there can be no assurances that mental health courts -- or any other such potentially-ameliorative alternative – will be ultimately “successful” (however we choose to define that term).Much of the recent debate on mental health courts has focused either on empirical studies of recidivism or on theorization. All of this discussion, while important and helpful, bypasses the critical issue that must be at the heart of the ultimate inquiry here: do such courts provide additional dignity to the criminal justice process or do they detract from the measure of dignity provided? Until we re-focus our sights on this issue, much of the discourse on this topic remains wholly irrelevant.My paper proceeds in this manner. In Part I, I discuss the underpinnings of therapeutic jurisprudence. In Part II, I briefly discuss some of the universal factors that contaminate mental disability law in all nations. In Part III, I look at the new Convention and its general implications for the future of mental disability law, with a special focus on the importance of dignity considerations in a Convention context. In Part IV, I first consider the role of blame in the criminal justice system, and then briefly outline the history of the development of mental health courts and consider some of the more serious criticisms of those courts. I conclude by offering some suggestions as to how therapeutic jurisprudence can best inform a MHC model that can be counted on to enforce international human rights and promote dignity.
... Winick and Wexler maintain that if lawyers and judges are to practice therapeutic jurisprudence in which less harmful outcomes for crime are sought, then they must employ an ethic of care. 290 Care ethics utilizes virtues such as compassion, tolerance, relationship, and benevolence when assessing the contextual and situational factors of conflict. 291 This approach promotes effective resolution rather than scrutinizing essential legal facts. ...
Based on the empirical evidence, automatic adolescent transfer to adult criminal court poses significant processing, treatment, and recidivism problems for youths, especially when issues of developmental maturity and trial fitness are brought to the fore. These concerns notwithstanding, legal tribunals increasingly rely on mandated waivers (both legislative and prosecutorial) as a basis to further judicial decision-making whose aim is punishment for serious juvenile offending and the protection of society from such future criminality. This qualitative study examines the prevailing state supreme court and appellate court opinions on this matter. By engaging in textual analysis, both the jurisprudential intent that informs these opinions and the ethical reasoning by which this intent is communicated are subjected to legal exegeses. Mindful of how existing strategies such as commonsense justice, therapeutic jurisprudence, and restorative justice represent types of psychological jurisprudence consistent with the philosophy of virtue ethics, this Article tentatively and provisionally delineates several policy recommendations for rethinking judicial decision-making on the issue of automatic adolescent transfer.
Sexual offenders are subjected to treatment that is intrusive and coerced, delivered by a range of disciplines and agencies, within criminal justice and civil settings. Principles of sentencing in Western systems simultaneously deliver punishment, deterrence, retribution, community protection, incapacitation, and rehabilitation. As one of a number of competing sentencing principles, the role and scope of sexual offender treatment are somewhat restricted. Treatment is often delivered as treatment‐as‐management, an approach that brings with it particular ethical concerns. This chapter provides a normative framework for ethical sex offender treatment. We believe that this framework is best achieved by providing treatment‐as‐support, which simultaneously balances sexual offender and community interests.
The role of nonjudicial officers occupies a hidden space in the U.S. judicial system. Statutorily sanctioned in many jurisdictions, such officers have a wide range of duties and responsibilities, including hearing certain pretrial motions in criminal cases and making decisions as to conditions of probation for sex offenders. These latter officers are frequently not lawyers, and 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 the scholarly literature, and absolutely no consideration from the perspective of therapeutic jurisprudence (TJ). An investigation into TJ’s basic inquiry into whether legal rules, procedures, and lawyer roles need to be reshaped suggests that TJ is not practiced in the systems under discussion here.
While the manifestation of therapeutic jurisprudence in specialty courts such as mental health and drug courts has received attention in the literature, there is little scholarship on the manifestation and function of therapeutic jurisprudence in probation settings. This study examines therapeutic jurisprudence in the context of a HOPE-based probation program called Swift and Certain probation. We observed status hearings and surveyed participants on their perceptions of the program for over 2 years. We found that therapeutic jurisprudence was manifested in the judge’s liberal use of praise during status hearings, which appeared to be an important part of participants’ positive perceptions of him and of procedural justice more generally. It was also manifested, though less directly, in interactions and relationships participants have with their probation officers. We conclude with suggestions for the implementation of therapeutic justice practices in Swift and Certain and similar probation programs.
This article introduces the remaining articles in the issue.
In this chapter, we will focus on the decision-making processes made “on the street” by police officers who choose to apprehend and arrest certain cohorts of persons with mental disabilities, rather than seeking other, treatment-oriented alternatives in dealing with them. There is robust valid and reliable literature demonstrating that certain methods of training programs designed for police officers—the “Memphis Model” of crisis intervention training (CIT) is the most well known—have resulted in dramatic reductions of arrests for “nuisance crimes” and have avoided contributing to the overincarceration of this population. Yet, these approaches are far from widespread, so far appearing in only a handful of cities with any consistency, and, as a result, populations of persons with mental disabilities in urban jails like Riker’s Island continue to skyrocket. The means by which these arrests are effectuated reveal a consistent strategic deployment of humiliation as a means of controlling this stigmatized cohort of the population. The shaming nature of these encounters and arrests often leave already-vulnerable individuals feeling unheard and potentially traumatized. We will examine these issues through the filter of therapeutic jurisprudence (TJ), a new modality of solving a full range of seemingly intractable social problems. TJ teaches us that voice, validation, and voluntariness—and embracing an “ethic of care”—are central to any efforts to remediate the sort of issues we discuss here.
Inquiries into a range of issues involving juveniles in the psychiatric hospitalization and criminal trial process reveal that, regularly, juveniles are subject to shame and humiliation in all aspects of the legal system that relate to arrest, trial, conviction, and institutionalization, shame and humiliation that are often exacerbated in cases involving racial minorities and those who are economically impoverished. We contextualize them into the juvenile justice system, and look specifically at how this is reflected in the case law. We then consider these findings through the filters of therapeutic jurisprudence and international human rights laws, concluding that these approaches best remediate the current state of affairs and infuse this system with badly-needed dignity.
Although the legal issues related to sexual autonomy and sexual offending are significantly different, the resistance to providing adequate and effective counsel and the employment of the vividness heuristic (to privilege anecdote and reject valid and reliable research) is similar in both cases. The past forty years has seen an explosion of interest in mental disability law, and a significant expansion of rights for the population of persons with mental disabilities, both in institutions and the community, during which the society has witnessed a revolution in American mental disability law. It saw the first broad-based, federal civil rights statutes enacted on behalf of persons with mental disabilities. It witnessed the creation of a “patients’ bar” to provide legal representation to such persons. But this revolution largely bypassed persons seeking to argue for sexual autonomy and seeking to apply procedural and substantive due process to matters involving invocation of the sexually violent predator status. However, at the same time that all this happened, another parallel set of developments has had a profound application on mental disability law—on case law, statutes, administrative regulations and lawyers’ roles. The expansion of the school of legal analysis known as therapeutic jurisprudence has caused scholars to reconsider many of the basic principles of this area of law, and it is critical that any analysis of mental disability law take the insights of this area seriously. The question we address in this paper is this: although there has been a general “revolution” in mental disability law, there are those whom it has not affected. To what extent does the law that governs sexual autonomy and that governs matters involving alleged sexually violent predators comport with these therapeutic jurisprudence principles? This paper considers that question.
This paper addresses a remarkably-underconsidered topic: the potential impact of scientific discoveries and an increased understanding of the biology of human behavior on sentencing decisions in the criminal justice system, specifically, the way that sentencing has the capacity to rely on scientific evidence (such as brain imaging) as a mitigating factor (or perhaps, in the mind of some, as an aggravating factor) in determining punishment. Such a new method of evaluating criminality, we argue, can be beneficial not only for the defendant, but also for the attorneys and judge involved in the case. If used properly, it may help to provide a more truly objective set of factors that contribute to an individual’s particular offending patterns, rather than continuing reliance on sentencing schemes that are swayed by societal bias and prejudice. However, it can become problematic if a legal system relies too heavily on untested theories, and even more problematic in cases in which science does not support legal conclusions. Scientific discovery moves faster than the law, and it is critical to make sure that the legal system is given an opportunity to catch up, rather than risk allowing “junk science” to influence how a defendant is treated.In this paper, we first examine criminal sentencing procedures, and discuss how a criminological view of a defendant’s offending behavior can work to mitigate harshly inappropriate sentences; in this context, we consider how Federal Sentencing Guidelines cases consider the significance of mental disability in sentencing decisions, especially in the aftermath of the Supreme Court’s decision in United States v. Booker. Then we review recent work on the biological bases of certain criminal behaviors and how it can be captured through brain imaging. Next, we consider how the use of such evidence continues to expand in the criminal trial process. Following this, we look at how the school of therapeutic jurisprudence can better inform how the legal system incorporates such evidence. Finally, we offer our recommendations for ensuring that scientific evidence is introduced appropriately in the legal system.
Veterans treatment courts (VTCs), a recent emergence from the specialized court movement, target the population of veterans in contact with the criminal justice system. Due to the contemporary nature of their dissemination, published empirical research on VTCs is only beginning to materialize. Additionally, national surveys of specialized courts are rare and typically occur decades after the courts emerge. This Article presents
descriptive results regarding the establishment, policy, structure, and procedures of VTCs using data from the first national survey of these courts, conducted in the early stages of their emergence. A national compendium of
VTCs (N = 114) was created. Seventy-nine VTCs (69% of the population) responded to the national survey. This study found both similarity and high variability across VTCs in different areas of policy, structure, and procedure.
Future national studies should be conducted to understand the evolution of these courts over time and provide an up-to-date national context relevant for subsequent single- and multi-site studies.
http://scholarlycommons.law.northwestern.edu/jclc/vol105/iss3/4
p> On behalf of the guest editors of this special issue, leading scholars and practitioners in the therapeutic jurisprudence (‘TJ’) field in Australia, Europe, and the US, we congratulate QUT and the authors for a valuable contribution to the increasingly influential presence of TJ on the international stage.
TJ had its genesis in the early 1990s as a new interdisciplinary approach to mental health law in the US, but has expanded remarkably in scope, reach and influence since then. TJ sees law as a social force which inevitably gives rise to unintended consequences, which may be either beneficial or harmful (what we have come to identify as therapeutic or anti-therapeutic consequences). These consequences flow from the operation of substantive rules, legal procedures, or from the behaviour of legal actors (such as lawyers and judges). It is in this sense that we conceive of the role of the law as a ‘therapeutic agent’. TJ researchers and practitioners typically make use of social science methods and data to study the extent to which a legal rule or practice affects the psychological well-being of the people it affects, and then explore ways in which anti-therapeutic consequences can be reduced, and therapeutic consequences enhanced, without breaching due process requirements. The jurisdiction with which TJ was most often associated in its earlier days tended to the that of the drug courts (in which the drug court team assists drug addicted offenders to break out of their cycle of offending by facilitating and supervising treatment programs as part of the court process itself) and the other so-called problem solving courts (more commonly referred to as ‘solution focussed courts’ in Australia). </p
There is a need for a disability rights tribunal in Asia (DRTAP) along with an information center (DRICAP) as part of that tribunal so that litigants can easily access the controlling domestic case law, statutes, and regulations of the participating nations. A successful DRTAP must be premised on therapeutic jurisprudence (TJ) principles, and that its creation would be hollow without dedicated and knowledgeable lawyers representing the population in question. In accordance with TJ principles, it must incorporate “voice, validation and voluntary participation” to insure that litigants have a sense of voice or a chance to tell their story to a decision maker. The tribunal must operate, in part, as a problem-solving court to address the underlying problems—not just the symptoms—of social issues such as substance abuse, domestic violence, child abuse, and mental illness. The idea of such courts has been exported to other nations. If the DRTAP operates in a manner consistent with these principles—following the best examples of domestic mental health courts and community courts—it will more likely fulfill the TJ mandate. The application of TJ will ensure the reshaping of legal rules, procedures, and lawyers’ roles to enhance their therapeutic potential without subordinating due process principles.
nterpretations of the General Comments to the Convention on the Rights of Persons with Disabilities (CRPD) — that command the abolition of the insanity defense and the incompetency status — make no theoretical or conceptual sense, disregard the history of how society has treated persons with serious mental disabilities who are charged with crime, and will lead to predictable torture of this population in prison, at the hands of both prison guards and other prisoners. Such interpretation also flies in the face of every precept of therapeutic jurisprudence. Support of this position exhibits a startling lack of understanding of the treatment of this population in prison settings, and ignores other articles of that Convention that support the continuation of this defense and this status, as well as other international human rights conventions that speak to the right to a “fair trial.” The abolition position is short-sighted and will lead to a worsening of the lives of an especially-marginalized and ignored segment of the population of persons with disabilities.
This paper (a version of which was presented as a keynote address at the fourth international therapeutic jurisprudence conference at the University of Auckland, NZ) first discusses the significance of the CRPD, and why, when it is read as an integrated document, the interpretations in the General Comment and the supporting literature must be unequivocally rejected, looking at other Articles and other foundational documents of international human rights law. It then looks at the singular role of the insanity defense and incompetency status in legal history, (1) acknowledging that, while pleading insanity may be a bad option, it is still one that needs to be retained, and (2) pointing out that raising the incompetency status is not an admission of factual guilt (in contrast to the insanity defense, which is), and that trying a person who is unable to cooperate with her counsel and rationally understand the proceedings against her makes it more likely that she will be convicted of crimes of which she may not be guilty, a base and basic violation of human decency.
It then considers the Comment that is at the center of this controversy, concluding that it makes no conceptual sense, and that, if implemented, it would violate due process, dignity and fair trial mandates, and, inevitably, lead to the torture of persons with mental disabilities who are charged with and convicted of crimes (in the case of those who “should be” found incompetent to stand trial, including those who are factually innocent), a denouement that is even more staggering when we realize that there is no indication that this outcome was ever in the minds of the drafters, that it was never debated, and that there is nothing to suggest that the populations in question were ever consulted.
Finally, the abolition of the defense and status violates every precept of therapeutic jurisprudence, the aim of which is to determine whether legal rules, procedures, and lawyer roles can or should be reshaped to enhance their therapeutic potential while not subordinating due process principles, premised on the core values of voice, validation and voluntariness. Elimination of the insanity defense and incompetency status make it virtually impossible that these values will be privileged, and make it more likely that sanist values in jails and prisons will fester to an even greater extent than they do now. See http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2683480
SUMARIO: I. Filosofía, epistemología y proceso: Una introducción. II. Crisis del positivismo, el realismo, post-modernismo: La emergencia de nuevos paradigmas científicos y jurídicos. III. Para una nueva lectura del proceso: Confrontando modelos epistemológicos. IV. El objetivismo y el cul-turalismo: ¿Una liason posible para el estudio del proceso? Reflexiones sobre el método. V. El enfoque clinical law para el análisis de los casos. VI. Voces en acción y análisis de los casos. VII. Conclusiones. VII. Bi-bliografía. I. FILOSOFÍA, EPISTEMOLOGÍA Y PROCESO: UNA INTRODUCCIÓN Por difícil y ambiciosa que pueda parecer una descripción de la unión entre Filosofía y el Derecho Procesal, ésta es útil como base para una primera reflexión sobre la relación entre el derecho y la realidad, concebidos por la Ilustración y la tradición positivista en adelante, en términos de separación y especificidad en lugar de complementariedad o comunicabilidad mutua.. Esta contribu-ción es el resultado de una estrecha colaboración entre los dos autores. Cabe señalar, sin embargo, que la Dra. Flora Di Donato redactó las secciones I, IV, V, VI (VI.1 y VI.2); Francesca Scamardella redactó las secciones III (III.1 y III.2) y VII. La sección II fue escrita por ambas. (Traducción de Piero Mattei-Gentili, revisada y corregida por Jorge Luis Fabra Zamora).
One of the most controversial social policy issues that remains dramatically underdiscussed in scholarly literature is the sexual autonomy of persons with psychosocial and intellectual disabilities, especially those who are institutionalized. This population – always marginalized and stigmatized – has traditionally faced a double set of conflicting prejudices: on one hand, people with disabilities are infantilized (as not being capable of having the same range of sexual desires, needs and expectations as persons without disabilities), and on the other, this population is demonized (as being hypersexual, unable to control base or primitive urges). Although attitudes about the abilities and capabilities of persons with disabilities are changing for the better, it remains true that, “many people still struggle to accept that mentally disabled individuals engage in sexual activity.” Even as the “sexual revolution” in the United States recognized sex and sexuality were needs rather than simply desires, persons with disabilities were left out of this shift in perception. Attitudes toward persons with disabilities engaging in sexual behavior have remained firmly in place for centuries; perhaps the most famous characterization remains Justice Oliver Wendell Holmes’s line in Buck v. Bell, a case involving sterilization of a woman allegedly intellectually disabled: “Three generations of imbeciles are enough.” People with disabilities, simply put, are frequently stripped of their sexuality. The ratification of the United Nations’ Convention on the Rights of Persons with Disabilities (CRPD) demands we reconsider this issue. In light of Convention Articles mandating, inter alia, "respect for inherent dignity," the elimination of discrimination in all matters related to interpersonal relationships, and services in the area of sexual and reproductive health, it is time for a radical change of perspective and attitude in how society views the sexuality, and right to express that sexuality, of persons with disabilities. Society as a whole must, as international law already has, recognize that being deemed a ‘person’ or ‘sexual’ is not contingent upon ability. Yet, the literature surrounding the sexual autonomy and issues of sexuality people with disabilities continue to confront remains remarkably silent on this issue in general, and totally silent about the issue we discuss in this paper: the CRPD’s impact on the rights to sexual autonomy for persons institutionalized because of psychosocial or intellectual disability.This paper will (1) briefly review the history of how significant legal and social issues regarding sexuality have been ignored and trivialized by legislators, policy makers and the general public, (2) highlight those sections of the CRPD that force us to reconsider the scope of this issue, (3) offer some suggestions as to how ratifying and signatory states must change domestic policy so as to comport with CRPD mandates, and (4) consider the implications of therapeutic jurisprudence insights for the resolution of these issues.
Considering whether the shift in media attention and focus has had an impact on past sex offender legislation and recent emerging laws
The public’s panic about the fear of recidivism if adjudicated sex offenders are ever to be released to the community has not subsided, despite the growing amount of information and statistically-reliable data signifying a generally low risk of re-offense. The established case law upholding sex offender civil commitment and containment statutes has rejected challenges of unconstitutionality, and continues to be dominated by punitive undertones. We have come to learn that the tools used to assess offenders for risk and civil commitment are often inaccurate and that meaningful treatment for this population is often unavailable and ineffective. Yet, society continues to clamor for legislation confining this cohort of offenders for “treatment,” and, ostensibly, protection of the community, and legislatures respond quickly to these calls. This “reform legislation” often includes strict and demeaning post-release restrictions that track offenders and curb their integration into society. These “reforms” continue to show no benefit either to the public or to the individual offender. The absence of meaningful and effective treatment during confinement, combined with inhumane conditions upon release, make it far less likely that this cohort of individuals will ever become productive members of society. Only through therapeutic jurisprudence, a focus on rehabilitation, and a dedication to treating sexual offenders humanely, will it be possible to reduce recidivism and foster successful community reintegration.
This article takes a new approach to these issues. It examines sex offender laws, past and present, looks at this area of sex offender commitment and containment through a therapeutic jurisprudence lens, and suggests basic policy changes that would optimally and constitutionally minimize re-offense rates, while upholding and protecting human rights of all citizens. It highlights the failure of community containment laws and ordinances by focusing on (1) the myths/perceptions that have arisen about sex offenders, and how society incorporates those myths into legislation, (2) the lack of rehabilitation offered to incarcerated or civilly-committed offenders, resulting in inadequate re-entry preparation, (3) the anti-therapeutic and inhumane effect of the laws and ordinances created to restrict sex offenders in the community, and (4) the reluctance and resistance of courts to incorporate therapeutic jurisprudence in seeking to remediate this set of circumstances. It concludes by offering some modest suggestions, based on the adoption of a therapeutic jurisprudence model of analysis.
Some judges who use shaming sanctions in the sentencing of criminals state explicitly that these sanctions work to deter future criminal behavior because they involve public humiliation (Morton, 2001; Sanders, 1998), an approach that apparently meets with the support and approval of both a significant portion of the public (Misner, 2000), as well as some scholars (Book, 1999). Specific humiliation sanctions have been upheld by courts in several states (Bateman, 1989 (Oregon)); Ballenger, 1993 (Georgia)); Goldschmitt, 1986 (Florida); see generally, Garvey, 1988). Such sanctions are used in a variety of cases including spousal abuse, drunk driving, and, increasingly, matters involving so-called sexual predators. In this paper, I will argue that (1) there is not a shred of empirical evidence that these sanctions have any utilitarian value, (2) such tactics are more likely to be (a) counter-productive, leading to further criminal activity, (b) utterly contradictory to the aims of therapeutic jurisprudence and/or restorative justice ( Winick & Wexler, 2006), and (c) ultimately demeaning to the victims of the initial criminal activity, and thus (3) there should be ban on the use of such "scarlet letter" punishments (Tavill, 1988). Sources:
There is mounting evidence that mental health courts (MHCs) reduce criminal recidivism and increase use of mental health services. Although not yet empirically tested, procedural justice has been proposed as one potential mechanism that promotes change and improves outcomes for MHC participants. In this article, we investigate MHC participants’ perceptions of procedural justice in interactions with MHC staff as well as the role of procedural justice in participants’ MHC program experiences. Participants from two MHC programs were invited to complete quantitative measures and a semistructured interview about their MHC experiences and perceptions of procedural justice. Univariate and bivariate analyses and qualitative analysis were used to examine the data. Findings indicate that MHC participants perceive a moderate level of procedural justice in interactions with MHC team members. However, perceptions of procedural justice are complex, involve multiple actions and inaction, and are affected by all members of the MHC team, not just the judge. Although scores on quantitative measures of procedural justice do not differ by court, participant perceptions discussed in semistructured interviews do vary. Implications for practice, policy, and research are discussed.
According to the American Correctional Association (ACA, 20083.
American Correctional Association Guidelines. (2008). http://www.aca.org (http://www.aca.org) View all references), mechanical restraint use is to be limited, preventing injury to self and/or to others when administered and certainly not applied to inmates as a punitive or protracted intervention. Regrettably, however, the ongoing use of control devices raises a number of thorny questions when deployed in prisons and jails. This article systematically reviews these concerns. Specifically, the health and mental health consequences for incarcerates are delineated, and the race, gender, class, and mental disability disparities that correspondingly attach are examined. Given these myriad concerns, the ethical justifications that serve as support for or opposition to this correctional practice are described. The article concludes by provisionally recommending how the philosophy of psychological jurisprudence, informed by insights derived from restorative justice and therapeutic jurisprudence, functions as a type of virtue ethics that re-conceives the problems posed by mechanical restraint use. The resultant strategy promotes healing, advances justice, and grows integrity for the kept and for their keepers, managers, and watchers.
This Article responds to Professor Mae C. Quinn's critique of the author's piece, Therapeutic Jurisprudence and the Rehabilitative Role of the Criminal Defense Lawyer, published in a 2005 symposium issue of the St. Thomas Law Review. This Reply Article suggests that Professor Quinn has badly misread or distorted the author's St. Thomas article. This Article takes serious issue with her characterization of the author's work, contends that the author and Professor Quinn are closer on many issues than her critique suggests, and points out areas of agreement and disagreement. Therapeutic Jurisprudence can be incorporated into the role of the criminal defense lawyer and, as a simple "add-on," it can be transformative of criminal law practice.
Therapeutic Jurisprudence (TJ) has now attracted the attention of legal scholars in many different fields of law - very much above and beyond the areas of mental health law and criminal law and procedure. The growth has been seen in law practice as well. The International Network on Therapeutic Jurisprudence, has an extensive bibliography - with an increasing number of links to full articles - and may be searched under author, subject area, keywords, language, etc. This short piece draws on the above-noted bibliography by listing a handful of representative articles under many different law school course offerings reflective of developments in the TJ field itself. The authors come from several countries - the U.S., U.K., Canada, Australia, Ireland, and Israel - and from the disciplines of law (including the judiciary), psychology, social work, criminal justice, and public health. The list is designed to guide law faculty, law students, and lawyers who wish to consider explicitly some TJ implications of a given substantive field of law. This is a mere smattering of relevant articles, some chosen for ease of accessibility or for brevity; many of the leading articles by leading scholars are omitted in order to concentrate on some new areas of inquiry (even if the pieces introducing those areas merely scratch the surface). This entire project is and will remain a work in progress.
As federal and state correctional institutions steadily release record numbers of ex-offenders each year, the communities into which prisoners are released are unprepared to sustain the economic and social burden of the massive reentry movement. As a result, reentering exoffenders lack the support needed to reintegrate themselves into society and to lead productive, law-abiding lives. This Article first explores political trends that account for the increase in incarceration rates over the last two decades and the resulting social, legal, and economic challenges of reentry both ex-offenders and their communities face. Only recently has the government begun to respond to these problems by establishing reentry courts that specialize in ex-offender transition, support, and supervision. After questioning the efficiency and institutional competence of reentry courts, the Article suggests two alternative ways in which the legal community might help to manage ex-offender reentry. First, public defender offices could evolve into a less specialized and more integrated role through which they could represent ex- offenders in a variety of matters related to reentry. Second, law schools could provide students with clinical opportunities through which to explore creative, non-traditional solutions to representation of ex-offenders. Ultimately, collaboration between lawyers and communities will be necessary to provide ex-offenders with the resources they need for successful reintegration.