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Restorative justice myopia
... TJ and RJ both seek to overcome the offender's denial of responsibility and harm to the victim and seek the healing of the victim and the offender. Both are also committed to evidencebased structure and the use of social science research (Braithwaite, 2002;Gal, 2020). However, whereas TJ is often perceived as a theoretical lens through which current practices are examined and seeks to make current legal practices more satisfying and therapeutic (Wexler, 2015), RJ offers a concrete alternative to the court process with a specific practice to achieve these therapeutic and satisfying outcomes with a focus on reparation (Gal, 2020;Gal & Moyal, 2011;Johnsen & Robertson, 2016). ...
... Both are also committed to evidencebased structure and the use of social science research (Braithwaite, 2002;Gal, 2020). However, whereas TJ is often perceived as a theoretical lens through which current practices are examined and seeks to make current legal practices more satisfying and therapeutic (Wexler, 2015), RJ offers a concrete alternative to the court process with a specific practice to achieve these therapeutic and satisfying outcomes with a focus on reparation (Gal, 2020;Gal & Moyal, 2011;Johnsen & Robertson, 2016). Among the values in the priority value list of RJ are empowerment, equal concern for all stakeholders, and accountability (Braithwaite, 2002). ...
Sex offender registration and notification policies have been subject of much debate. Therapeutic jurisprudence (TJ) scholars in particular have called for the dismantling of many of these policies in light of their detrimental effect on sex offender rehabilitation and their ineffectiveness in promoting community safety. However, the impact of sex offender notification policies on community members has not been thoroughly explored from a TJ framework. This article addresses this gap by studying the impact of sex offender community notification meetings on meeting attendees, with special attention to the empowerment expectation of community members. Specifically, this project entailed a secondary analysis of Zevitz and Farkas’s (2000c) analysis of survey data (N=704 residents) from 21 community notification meetings conducted across Wisconsin in 1998. A more robust single- and multilevel multivariate analysis of the original data identified the true impact of specific predictors on attendees’ post-meeting concern level. Contrary to previous findings, results indicated that people who came into the meeting with empowerment expectations ended up being concerned, regardless of meeting content and organization and amount of information they received. In other words, rather than being empowered by information control, residents experienced frustration that led to anti-therapeutic outcomes from the meeting. In conclusion, this project sheds new light on the anti-therapeutic consequences of notification meetings for the community and calls for re-conceptualizing their purpose and content and/or adopting other mechanisms to handle sex offenders in the community.
Keywords: Therapeutic Jurisprudence, sex offender registration and notification, sex offender policy, community notification, empowerment, CoSA
This paper provides an original, in-depth analysis of English and Welsh criminal and penal policy on restorative justice. By using a historically-discursive approach—legal archaeology—this study firstly outlines the overarching representations of restorative justice within policy, unpacking their internal organisation. Then, it interprets such patterns of knowledge in light of specific cultural, political and professional transformations involving the Anglo-Welsh criminal justice field over the last 30 years. Along these lines, it generates a historically documented policy map whilst problematising the taken-for-granted images of restorative justice which populate regulations, codes and laws. This has implications for the study of the relationships between restorative justice policy and practice and for future research on the institutionalisation of this ‘new’ frontier of penality. More generally, the exploration of (unexpected) links between policy, politics and culture, provides material for a critical assessment of how state agencies appropriate community-based and practice-led forms of justice.
This chapter is based on a study that reviewed recidivism outcomes for adult men and women imprisoned in two Hawai'i state prisons who participated in restorative justice reentry circles prior to release. These men and women were tracked for at least three years after their release. Self-selection bias by choosing to have a circle was reduced by comparing recidivism outcomes of individuals who applied for and had a reentry circle with those who applied for a circle, but did not have one. The chapter aims to contribute to the Volume's key objectives by presenting original research showing promising results with significantly lower recidivism for the 58 individuals in the experimental group that had circles compared to the 60 individuals in the control group who applied for a circle, but did not have one.
Since its inception in the 1980s, the growing body of Therapeutic Jurisprudence scholarship has continued to challenge and optimise not only our understanding of what the law “is”, but also how we can leverage its agency to improve the ways in which we apply, observe and evaluate the law. By focusing on the emotional, human and psychological consequences of legal processes, Therapeutic Jurisprudence empowers practitioners to design emotionally intelligent and remedial strategies to either minimise harmful consequences or enhance restorative legal goals and outcomes. As the influence of Therapeutic Jurisprudence scholarship and its practical applications has continued to gain traction in rapid and organic growth, collaborations brokered with a wide range of social science disciplines have called for a more robust focus on validated measurement scales. To that end, there is a clear and growing need for a suite of Therapeutic Jurisprudence specific tools for empirical evaluation. As there has been no formal attempt within the Therapeutic Jurisprudence research community to begin this process, this paper breaks new ground by providing a validated tool for empirical measurement of the therapeutic quality of judicial officers' behavioural and interactional styles in problem-solving court jurisdictions. Using original empirical data recently collected at a problem-solving court in England, the paper takes the reader through the journey of statistically validating the levied scaling systems by performing Principal Component Analysis and Cronbach's Alpha. In doing so, the paper offers an original contribution to Therapeutic Jurisprudence methodology.
Recently, “problem-solving” courts have been developed as an alternative to imprisonment. They are often called “specialty” courts because
they process and divert into treatment programs offenders who are
seen as different from the general criminal population, such as those
with mental health or drug problems, those who are homeless or
veterans, and those who engage in domestic violence. Based on
a 2017 national survey of 1,000 respondents, the current study examines
overall public support for rehabilitation as a goal of corrections and then
focuses specifically on support for different types of specialty courts. The analysis reveals that the American public endorses not only the rehabilitative ideal but also the use of problem-solving courts. Further, with only minimal variation, strong support for these courts appears to exist regardless of political orientation and sociodemographic characteristics.
Community courts (CCs) provide a therapeutic diversion for repeat low-level offenders. This article explores the characteristics of two Israeli CCs using the Criminal Law Taxonomy (CLT), an instrument developed by the authors for assessing process-, stakeholder-, substance-, and outcomes-related characteristics of criminal justice mechanisms. Through court-hearing observations and a process of multi-rater coding of cases, the article analyzes the courtroom dynamics according to a set of 13 measurable parameters. Results: The process was conceived as a vehicle for promoting the model goals: it was highly offender-oriented and involved a needs-based terminology while allowing for restrained expression of emotion. However, the process included no victim-offender dialogue and offender supporters and community representatives were only partially involved. The findings provide information about the program’s implementation integrity; they also offer a basis for comparison with the characteristics of other justice mechanisms. While focusing on an Israeli program, the issues the article addresses reflect practices and controversies that are salient in many jurisdictions worldwide.
This is the submitted version. The final paper will be published in Behavioral Sciences & The Law.
em>This article examines Hawaii’s Opportunity with Probation Enforcement (HOPE) program through the lens of therapeutic jurisprudence (TJ). The article presents an overview of TJ and solution-focused courts, followed by an overview of HOPE, including findings from four evaluations. It then provides a detailed description of recent observations of HOPE in practice, with particular focus on the warning hearing, sanctions for non-compliance, early termination for good behaviour, and the intersections between TJ, HOPE and procedural justice. The article concludes by arguing that there are a number of misunderstandings about HOPE and that it is best understood when viewed through a TJ lens.</em
The problems of mass incarceration and other criminal justice system failures in the United States—such as racial disparities, wrongful convictions, and high recidivism rates—have reached a tipping point. For the first time in decades, coalitions of politicians on the left and right are seeking criminal justice reform. What is the place of restorative justice in these efforts? What is the depth and breadth of restorative justice implementation? How familiar is the American public with restorative justice? How successful is the restorative justice movement? In this article, we seek answers to these questions as we try to assess the future of restorative justice in the United States.
Restorative justice was reborn in the 1970s with a promise to provide a better sense and experience of justice, especially for those who are let down the most by the criminal justice system. And yet, despite well-evidenced disproportionality and race inequality issues within criminal justice institutions, restorative justice research and practice within the context of race are almost nonexistent. This article aims to unravel this paradox while looking at the scant extant literature to explore the alternative and more personalized restorative justice vision of “the other” and cultural differences. An expansive conceptual model that is aligned with the integrative nature of restorative justice is then posited for further pilots and research. The article warns that if restorative justice continues to ignore the challenges raised within a race equality context, the power structures inherent within our current structural framework of criminal justice will lead to its demise.
Restorative justice goals are frequently articulated on micro, meso and macro levels. One macro-level goal frequently made
by advocates is that restorative justice may serve as a viable means of reducing incarceration. Focusing on Australia, New
Zealand, the United Kingdom and the United States, this article argues that while these countries have seen some of the largest
increases in incarceration within western industrialized countries, as well as the most widespread use of restorative justice,
there is little evidence that restorative justice has reduced prison populations. It also argues that as currently practiced
there is little reason to assume that restorative justice will have a significant impact on incarceration in the near future.
Attention is given to the problem of the ‘transformation assumption’ inherent in restorative justice that micro-level changes
in offender behaviours or restorative outcomes can significantly affect the larger social structures of punishment and incarceration.
A keynote address and foreword/chapter for the book edited by Prof. Warren Brookbanks, Essays on Therapeutic Jurisprudence in New Zealand (2015), a book prepared for the 4th International Therapeutic Jurisprudence Conference, 2015, Auckland, NZ. The Foreword proposes the use of a wine/bottle metaphor to audit and improve the therapeutic dimension of the law. As such, it builds on the author's earlier work setting forth the wine/bottles metaphor to look at the law itself(bottles) and its application(wine).
This essay forms the basis of a presentation at Balliol College, Oxford University, at the International Symposium on Therapeutic Jurisprudence and Problem-Solving Justice. Although therapeutic jurisprudence( TJ) actually originated outside the context of problem-solving courts, TJ in practice remains closely associated with such courts, probably because their structure invites the use of a style of judging endorsed by the TJ literature. Recently, however, for economic and other reasons, there has been an interest in “mainstreaming” TJ and related approaches to judging. For that to occur, we need to examine the governing “legal landscapes” (legal rules and legal procedures) in mainstream criminal courts to see how “TJ-friendly “– or unfriendly — they may be. We may conceptualize the principles of TJ judging as a kind of “liquid,” and can look at the operative legal structures as “bottles,” An analysis of varying legal provisions will indicate how much of the TJ liquid can be poured into the assorted bottles. This examination can lead to proposing a TJ “code” of proposed criminal processes, together with a commentary explaining how, under the given suggested structures, the law can be administered to maximize the use of TJ judging principles. In the present essay, I concentrate mostly (but not exclusively) on US law, although the coverage is quite spotty, and a state-by-state TJ look at relevant criminal processes is very much in order. Moreover, as TJ is now quite international in scope, my hope is that the exercise might be undertaken as well in other jurisdictions, and that the result may be the creation of a rich body of TJ thinking in a comparative law context.
This brief essay, co-authored by a legal academic and by an experienced trial judge-turned-academic, looks at a state criminal procedure rule allowing for "criminal settlement conferences." Such conferences, not universally recognized, are basically a form of judicial mediation. This essay shows how the criminal settlement conference procedure can be improved in its implementation by infusing it with judicial practices and techniques of therapeutic jurisprudence (TJ), techniques one of the authors has already used in conferences at which he has presided. Here, the essay goes a step beyond and proposes, with the full consent of the participants, the therapeutic use of an arbitration technique -- the "last best offer" (LBO) approach -- to motivate the parties (defendant, victim, and state) better to see and appreciate all the positions involved -- and to increase the chances of an agreed-upon settlement. The essay closes with a recommendation that other jurisdictions consider the adoption of the legal structure permitting such conferences and that such conferences be implemented with a robust use of therapeutic techniques, including the LBO approach.
This essay is the basis of a plenary address to be delivered in Melbourne, Australia at an international conference on "nonadversarial justice." In this piece, I trace how therapeutic jurisprudence (TJ) has, through a few simple conceptual frameworks, influenced the practice of many judges and lawyers. Many of their contributions have been unearthed on a "hit or miss" basis, as when they happen to be mentioned during TJ panel discussions at international conferences. But we need a more systematic way of collecting these creative contributions, and we also need to develop a new type of practical interdisciplinary scholarship to disseminate and evaluate these developments. The paper explores some methods for accomplishing this.
The emergence of restorative justice as an alternative model to Western, court-based criminal justice may have important implications for the psychology of justice. It is proposed that two different notions of justice affect responses to rule-breaking: restorative and retributive justice. Retributive justice essentially refers to the repair of justice through unilateral imposition of punishment, whereas restorative justice means the repair of justice through reaffirming a shared value-consensus in a bilateral process. Among the symbolic implications of transgressions, concerns about status and power are primarily related to retributive justice and concerns about shared values are primarily related to restorative justice. At the core of these processes, however, lies the parties' construal of their identity relation, specifically whether or not respondents perceive to share an identity with the offender. The specific case of intergroup transgressions is discussed, as are implications for future research on restoring a sense of justice after rule-breaking.
As researchers and practitioners begin to understand the complex relationship between victimization and offending, there is an increased need to address prior trauma in the court context. This includes in court processes themselves, as well as through offender supervision conditions in the form of treatment referrals. While not all offenders have been victims themselves, trauma-informed practices recognize the possibility of trauma history in the lives of court-involved individuals. Trauma-informed practices seek to address abuse and trauma and respond in a person-centered and supportive manner. When implemented in juvenile courts, there is potential for disrupting the school-to-prison pipeline. This review seeks to understand how trauma-informed processes—already in use in juvenile courts—can be incorporated into adult courts to better address offender risks and needs, with the goal of facilitating rehabilitation. In doing so, we assess the extent to which extant justice perspectives (i.e., procedural justice, therapeutic jurisprudence, and restorative justice) and principles of gender-responsiveness are compatible with trauma-informed practices in adult courts. Implications for theory, future research, and practice are discussed.
This article provides an empirical, comparative analysis of three criminal justice programs that reflect different social and ideological accounts: community courts, arraignment hearings, and restorative justice. The study draws on empirical findings that have been collected over three years in Israel, through observations and archival documentation of these mechanisms. Using the Criminal Law Taxonomy developed elsewhere by the authors as an analytical tool, the comparison is based on characteristics that relate to the structure, content, stakeholders, and outcomes of these justice mechanisms, emphasizing the plurality we have today in multi-door criminal justice systems. The comparative analysis highlights differences and similarities among various justice mechanisms, and offers policy makers and criminal justice practitioners important insights for referring different cases to various mechanisms.
As contemporary criminal justice practices have grown more varied, the equality concerns they raise have grown more nuanced and complex. This essay explores the interplay between equality in criminal justice and the mix of punitive and non-punitive mechanisms that have proliferated in parallel in the criminal justice systems of many post-industrial societies in the last thirty years. Multi-door criminal justice does not fare well under the dominant conception of equality in American criminal law, which seeks to stamp out disparities in punishment and ensure roughly equal outcomes for roughly similar offenders. But we need not view that as fatal to multi-door criminal justice. Tension between a multi-door system and our reigning approach to equality might suggest reasons to question the latter more than it does the former. Alternative, more flexible, more process-oriented conceptions of equality might exist that could better accommodate a multi-door world while still protecting and advancing egalitarian norms and ideals. At the same time, shifting our perspective on equality will not eliminate all equality concerns that flow from multi-door criminal justice, and it likely will reveal new ones. The question then becomes not whether multi-door criminal justice is unequal in some absolute sense. The question is whether it is less unequal—or unequal in more palatable ways—than what we have now.
Plea bargaining is the primary, and unavoidable, method for resolving the vast majority of criminal cases in the United States. As more attention is paid to reform and changes in the criminal legal system, plea bargaining has also come into the spotlight. Yet we actually know very little about what happens during that process—a potentially complex negotiation with multiple parties that can, at different times, include prosecutors, defense counsel, judges, defendants, and victims. Using negotiation theory as a framework, we analyze why more information about the process itself can improve this crucial component of the system. More information—more data—would permit informed judicial oversight of pleas, improve lawyers’ capacities to negotiate on behalf of clients and the state, and increase the legitimacy of the bargaining between parties where one side tends to have far more resources and power. Without increased transparency, many of the players in the criminal legal system are just bargaining in the dark.
Expertise in multi-door criminal justice enables new forms of intervention within existing criminal justice systems. Expertise provides criminal justice personnel with the rationale and means to use their authority in order to carry out their existing roles for the purpose of doing (what they see as) good. In the first section, we outline theoretical frameworks derived from Gil Eyal’s sociology of expertise and Thomas Haskell’s evolution of moral sensibility. We use professional stakeholder interview data (N = 45) from our studies of three emerging and existing prostitution diversion programs as a case study to illustrate how criminal justice actors use what we define as primary, secondary, and tertiary expertise in multi-agency working groups.
Actors make use of the tools at their disposal—in this case, the concept of trauma—to further personal and professional goals. As our case study demonstrates, professionals in specialized diversion programs recognize the inadequacy of criminal justice systems and believe that women who sell sex do so as a response to past harms and a lack of social, emotional, and material resources to cope with their trauma. Trauma shapes the kinds of interventions and expertise that are marshalled in response. Specialized programs create seepage that may reduce solely punitive responses and pave the way for better services. However empathetic, they do nothing to address the societal forces that are the root causes of harm and resultant trauma. This may have more to do with imagined capacities than with the objectively best approaches.
Individuals with behavioral health disorders are significantly overrepresented in the criminal justice system. The incarceration of offenders with substance use disorders and mental illness has contributed to dramatic growth in the incarcerated population in the United States. Problem-solving courts provide judicially supervised treatment for behavioral health needs commonly found among offenders, including substance abuse and mental health, and they treat a variety of offender populations. By addressing the problems that underlie criminal behavior, problem-solving courts seek to decrease the “revolving door” that results when offender needs are not addressed. Problem-solving courts use a team approach among the judge, defense attorney, prosecutor, and treatment providers, which is a paradigm shift in how the justice system treats offenders with special needs. Offenders in problem-solving courts are held accountable for their behavior while being provided with judicially supervised treatment designed to reduce the risk of reoffending. Despite the proliferation of problem-solving courts, there are unanswered questions about how they function, how effective they are, and the most promising ways to implement problem-solving justice. Problem-Solving Courts and the Criminal Justice System is the first book to focus broadly on problem-solving courts. The changing landscape of the criminal justice system, recent development of problem-solving courts, and ongoing shift toward offender rehabilitation underscore the need for this book. This book provides those in the fields of mental health, criminal justice, law, and related fields with a comprehensive foundation of information related to the role of problem-solving courts in reforming the criminal justice system. This book also provides researchers, academics, administrators, and policy-makers with an overview of the existing research on problem-solving courts, including the challenges faced by researchers when examining these courts.
In 2007 the Irish National Crime Council recommended that community courts should be
established in Ireland, located in the inner city of Dublin, to deal with quality-of-life
offences. In 2009 the final report of the National Commission on Restorative Justice
recommended that restorative justice be legislated for, and introduced nationally in the
criminal justice system in Ireland, by no later than 2015. Now, in 2019, we are still
awaiting the introduction of community courts and the national rollout of restorative
justice. Some progress, however, has been made in both areas. In 2014 the Minister for
Justice announced that a pilot scheme would be established in Dublin, through which a
community court would be established. Close monitoring and evaluation would determine
whether community courts should then be rolled out on a national level. Several
restorative justice schemes around the country have been expanded since the publication
of the final report of the National Commission on Restorative Justice (2009), and a small
but dedicated restorative justice movement is developing in Ireland. This paper argues
that the rollout of restorative justice should coincide with the development and rollout of
community courts in Ireland, and that community courts should contain an element of
restorative justice. It also argues that the recent expansion of restorative justice schemes
should be allowed to continue independently of the development of community courts in
order to help facilitate a national rollout of restorative justice in the Irish criminal justice
system.
Measuring the restorativeness of restorative justice: the case of the Mosaica Jerusalem Programme
This study uses a Jerusalem-based restorative justice programme as a case study to characterise community restorative justice (CRJ) conferences. On the basis of the Criminal Law Taxonomy, an analytical instrument that includes seventeen measurable characteristics, it examines the procedural elements of the conferences, their content, goals and the role of participants. The analysis uncovers an unprecedented multiplicity of conference characteristics, including the level of flexibility, the existence of victim-offender dialogue, the involvement of the community and a focus on rehabilitative, future-oriented outcomes. The findings offer new insights regarding the theory and practice of CRJ and the gaps between the two.
The national Justice Reinvestment Initiative has arguably been the most important development in American sentencing policy in the past decade. This essay introduces an issue of the Federal Sentencing Reporter that focuses on the JRI. The essay highlights both strengths and weaknesses of the JRI, particularly from the standpoint of reducing mass incarceration in the United States.
This Article considers the contribution of Therapeutic Jurisprudence (TJ) to the theoretical development and practical advancement of reforms in child care law. It does so by presenting three dilemmas arising from The Israeli Youth Law (Care and Supervision)–1960 relating to its substance, procedures, and practice. TJ is a " field of enquiry " that examines the influence of the law on litigants in order to advance rules and practices that have therapeutic effects and to minimize the use of rules and practices that have anti-therapeutic ones. Following the TJ methodology, we integrate psycho-social findings into the legal discussion. We also follow Wexler's metaphoric framework portraying legal rules and structures as " bottles " , practices and behaviors as " wine " , and social science knowledge as " vineyards " from which TJ-oriented " wine " can be made. We propose some therapeutic " wine " , as well as legal reform to make the child protection " bottle " more " TJ-friendly " for children and families.
Since John Howard’s (1777) condemnation of local places of detention at the end of the eighteenth century, the goal of prison reform has been to replace local jails with their porous boundaries and mixes of troubled citizens, with austere and complete “total institutions.” The current crisis of mass imprisonment is an opportune moment to rethink this strategy. In particular, California’s Correctional Realignment law represents a provocative counter note to the historic link between progress in prison reform and state administration. This article proposes that we see crime, mental illness, and incarceration less like a state (Scott 1998) and more like a city (Valverde 2011). When we do, the jail emerges as a potentially equilibrium solution to the problems of mental illness, crime, and incarceration.
“Backed up by the best science, Todd Clear and Natasha Frost make a compelling case for why the nation’s forty-year embrace of the punitive spirit has been morally bankrupt and endangered public safety. But this is far more than an exposé of correctional failure. Recognizing that a policy turning point is at hand, Clear and Frost provide a practical blueprint for choosing a different correctional future-counsel that is wise and should be widely followed.”-Francis T. Cullen, Distinguished Research Professor of Criminal Justice, University of Cincinnati Over the last 35 years, the US penal system has grown at a rate unprecedented in US history-five times larger than in the past and grossly out of scale with the rest of the world. This growth was part of a sustained and intentional effort to “get tough” on crime, and characterizes a time when no policy options were acceptable save for those that increased penalties. In The Punishment Imperative, eminent criminologists Todd R. Clear and Natasha A. Frost argue that America’s move to mass incarceration from the 1960s to the early 2000s was more than just a response to crime or a collection of policies adopted in isolation it was a grand social experiment. Tracing a wide array of trends related to the criminal justice system, The Punishment Imperative charts the rise of penal severity in America and speculates that a variety of forces-fiscal, political, and evidentiary-have finally come together to bring this great social experiment to an end. Clear and Frost stress that while the doubling of the crime rate in the late 1960s represented one of the most pressing social problems at the time, this is not what served as a foundation for the great punishment experiment. Rather, it was the way crime posed a political problem-and thereby offered a political opportunity-that became the basis for the great rise in punishment. The authors claim that the punishment imperativeis a particularly insidious social experiment because the actual goal was never articulated, the full array of consequences was never considered, and the momentum built even as the forces driving the policy shifts diminished. Clear and Frost argue that the public’s growing realization that the severe policies themselves, not growing crime rates, were the main cause of increased incarceration eventually led to a surge of interest in taking a more rehabilitative, pragmatic, and cooperative approach to dealing with criminal offenders. The Punishment Imperative cautions that the legacy of the grand experiment of the past forty years will be difficult to escape. However, the authors suggest that the United States now stands at the threshold of a new era in penal policy, and they offer several practical and pragmatic policy solutions to changing the criminal justice system’s approach to punishment. Part historical study, part forward-looking policy analysis, The Punishment Imperative is a compelling study of a generation of crime and punishment in America.
Lode Walgrave has made a highly significant contribution to the worldwide development of the restorative justice movement over the last two decades. This book represents the culmination of his vision for restorative justice. Coming to the subject from a juvenile justice background he initially saw restorative justice as a means of escaping the rehabilitation-punishment dilemma, and as the basis for a more constructive judicial response to youth crime that had been the case hitherto. Over time his conception of restorative justice moved in the direction of focusing on repairing harm and suffering rather than ensuring that the youthful offender met with a ‗just‗ response, and encompassing the notion that restorative justice was not so much about a justice system promoting restoration, more a matter of doing justice through restoration.
When and if the will to roll back mass incarceration and to create just, fair, and effective sentencing systems becomes manifest, the way forward is clear.
First, three‐strikes, mandatory minimum sentence, and comparable laws should be repealed.
Second, any three‐strikes, mandatory minimum sentence, and comparable laws that are not repealed should be substantially narrowed in scope and severity.
Third, any three‐strikes, mandatory minimum sentence, and comparable laws that are not repealed should be amended to include provisions authorizing judges to impose some other sentence “in the interest of justice.”
Fourth, life‐without‐possibility‐of‐parole laws should be repealed or substantially narrowed.
Fifth, truth‐in‐sentencing laws should be repealed.
Sixth, criminal codes should be amended to set substantially lower maximum sentences scaled to the seriousness of crimes.
Seventh, every state that does not already have one should establish a sentencing commission and promulgate presumptive sentencing guidelines.
Eighth, every state that does not already have one should establish a parole board and every state should establish a parole guidelines system.
Ninth, every state and the federal government should reduce its combined rate of jail and prison confinement to half its 2014 level by 2020.
Tenth, every state should enact legislation making all prisoners serving fixed terms longer than 5 years, or indeterminate terms, eligible for consideration for release at the expiration of 5 years, and making all prisoners 35 years of age or older eligible for consideration for release after serving 3 years.
These proposals are evidence‐based and mostly technocratic. Those calling for prison population targets and reducing the lengths of sentences being served may seem bold to some. Relative to the problems they address, they are modest and partial. Decreasing rates of imprisonment by half in the United States, a country with comparatively low crime rates, to a level that will remain 3 to 3.5 times those of other developed Western countries, can hardly be considered overly ambitious.
This article reports on research conducted on the Red Hook Community Justice Center in Brooklyn, New York. It theorizes the structure and process of community justice, focusing on the model offered by community courts and examining how the Red Hook Community Justice Center's development and implementation are products of its immersion in the intersection of societal, spatial, and political dynamic within the Red Hook neighborhood. The article begins by reviewing the sociological perspectives that converge in the historical development of "community justice." It continues by setting forth a framework of social regulation and control that shapes the internal workings of these new legal institutions, and also influences their relations with the communities that host them. Next, it identifies challenges facing community justice centers and community courts in their efforts to reconcile a complex vector of institutional, social, and political dynamics." The Article concludes by revisiting the conceptual frames of these courts, and locating their historical development in broader themes of the role of legal institutions in rapidly changing social contexts
This Essay develops a model that integrates restorative justice within the conventional punitive system of criminal responsibility and punishment. Contrary to the conventional wisdom, we demonstrate that restorative justice should form a synergy with retributivism, deterrence, incapacitation, and other punitive goals of criminal law. We show how this synergy can be formed, illustrate its operation and identify its potential contribution to social welfare.
Therapeutic jurisprudence embodies a psychological approach to law - one that applies the insights and principles of psychology to the examination of legal rules and practices and to their improvement. It provides a new focus for law and psychology scholarship, identifying a variety of issues in need of theoretical and empirical examination Law reform is an important theme of therapeutic jurisprudence, and scholars applying the approach have succeeded in offering an enormous range of proposals for legal change in a wide variety of legal contexts. In addition, therapeutic jurisprudence identifies a number of new roles and contexts for clinical psychologists working in the legal system. This chapter illustrates the growing impact of therapeutic jurisprudence on the field of law and psychology. It then illustrates how therapeutic jurisprudence can be used to map a new research agenda for law and psychology scholarship that would be highly useful for the legal system. Empirical work examining the therapeutic consequences of legal arrangements and therapeutic jurisprudence reform proposals has begun to emerge, but the extent of such work still remains disappointingly small. This chapter is designed to help research psychologists and other social scientists to understand better the potential of therapeutic jurisprudence for identifying important questions for empirical investigation.
Over the past 20 years, court and legal practices have changed due to the influence of more emotionally intelligent and less adversarial approaches to resolving legal disputes. Restorative justice encounters involving victims and offenders discussing what happened, why it happened and what reparation can be made have promoted victim wellbeing and offender rehabilitation. Therapeutic jurisprudence has suggested reforms to minimise the law’s negative effects on wellbeing and to promote its wellbeing-related goals such as crime victims’ safety and health, injured workers’ rehabilitation and broken families’ welfare. Both see the management of emotions and professionals’ interpersonal skills as important in dispute resolution. This article argues that judging and legal practice should include exercising intrapersonal and interpersonal skills, and that legal education should train legal professionals accordingly.
Recent years have seen a proliferation of problem solving courts designed to rehabilitate certain classes of offenders and thereby resolve the underlying problems that led to their court involvement in the first place. Some commentators have reacted positively to these courts, considering them an extension of the philosophy and logic of Therapeutic Jurisprudence, but others show concern that the discourse surrounding these specialty courts has not examined their process or outcomes critically enough. This paper examines that criticism from historical and social scientific perspectives. The analysis culminates in a model that describes how offenders are likely to respond to the process as they engage in problem solving court programs and the ways in which those courts might impact subsequent offender conduct. This Therapeutic Jurisprudence model of problem solving courts draws heavily on social cognitive psychology and more specifically on theories of procedural justice, motivation, and anticipated emotion to offer an explanation of how offenders respond to these programs. We offer this model as a lens through which social scientists can begin to address the concern that there is not enough critical analysis of the process and outcome of these courts. Applying this model to specialty courts constitutes an important step in critically examining the contribution of problem solving courts.
Have problem-solving courts changed the practice of law?
- C Alkon
Alkon, C. (2020). Have problem-solving courts changed the practice of law? Cardozo
Journal of Conflict Resolution, 21, 597-624. Retrieved from https://ssrn.com/
abstract=3657695 (last accessed 14 September 2020).
Decarcerating America: the opportunistic overlap between theory and (mainly state) sentencing practice as pathway to meaningful reform
- M Bagaric
- D Mccord
Bagaric, M. & McCord, D. (2019). Decarcerating America: the opportunistic overlap
between theory and (mainly state) sentencing practice as pathway to meaningful
reform. Buffalo Law Review, 67(2), 227-310.
Problem-solving courts: justice for the twenty-first century?
- G Berman
Berman, G. (2009). Problem solving justice and the moment of truth. In P.C. Higgins &
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