Title

 

Therapeutic Jurisprudence in Criminal Justice: The Price of Letting One Hundred Flowers Bloom

 

Abstract

Like other "alternative" justice mechanisms, the advancement of therapeutic jurisprudence (TJ) in criminal justice has largely been driven by practice. On the level of theory, however, TJ remains inchoate. This article critically examines some of the problems stemming from the underdevelopment of TJ across its philosophical and empirical dimensions and how this has impacted on the conceptualisation and application of TJ in the criminal justice setting. In the process, it sheds new light on the relationship between TJ and criminal justice, identifying critical areas in need of further development. It concludes by considering how the shortcomings identified could be addressed in order for it to bloom.

Acknowledgements

A version of this article was delivered on 6 June 2019 at the first meeting of the International Society for Therapeutic Jurisprudence's UK Chapter. My warm thanks go to the Co-Chairs of UK Chapter, Emma Jones and Anna Kawalek, for hosting that event and for editing this Special Edition. I would also like to thank the participants of the meeting for their responses to my presentation and the three anonymous reviewers for their insightful comments on an earlier draft of this article.


 

Introduction

The term 'therapeutic jurisprudence' (TJ) was first articulated in 1987 as a critical response to the growing evidence that mental health law was producing counter-therapeutic effects for those same individuals it was intended to assist. [1] Broadly, TJ views the law (comprising legal rules, procedures and actors) as a 'social force that produces behaviours and consequences' [2] which can be therapeutic, anti-therapeutic or neutral. TJ advocates that we should be aware of and responsive to the impact of these consequences on wellbeing. It also suggests that consideration be given to how the law might be able to be reformed or applied more therapeutically - that is, in ways that will maximise therapeutic impacts and minimise anti-therapeutic impacts - provided the suggested therapeutic alternative does not undermine fundamental justice concerns. TJ's expansion to criminal justice occurred in 1990 following David Wexler's exploration of ways in which the 'therapeutic power' [3] of the criminal law could be harnessed. Applications of TJ in this setting have since developed in response to some of the well-rehearsed failures of conventional Western criminal justice thinking and practices such as rising imprisonment rates, high rates of recidivism, and other problems stemming from conventional approaches to wrongdoing, in particular, the limits of adversarial processes. Accordingly, TJ is often described as an 'innovative' [4] justice mechanism or process inasmuch as it offers different ways of "doing" or approaching justice. In practice, TJ has found fertile ground in many Western criminal justice systems over the past three decades, resulting in numerous applications across a broad spectrum of domains: from courts and criminal law practice to corrections and even policing. In the main, the most prominent vehicles for the application of TJ are drug courts which function as important 'laboratories' [5] for the testing, development and application of TJ 'theory' [6] and 'principles'. [7] There is a project underway led by TJ proponents to attempt to mainstream so-called TJ "principles" that underpin drug and other problem solving courts into conventional criminal courts. [8] Despite the longstanding and extensive application of TJ in practice, our understanding of the relationship between TJ and criminal justice and what a TJ approach offers remains limited. There has been comparatively scant theoretical engagement with TJ by criminologists and criminal justice scholars compared to other alternative justice mechanisms like restorative justice. [9]

Various words have been used to describe how we should conceive TJ including, but not limited to, a 'heuristic', [10] a 'perspective', [11] a 'lens', [12] and an 'enterprise'. [13] Some have even described TJ as a 'paradigm' in legal and criminal justice contexts. [14] While there are numerous references to TJ 'theory', [15] Wexler asserts that TJ 'is not and has never pretended to be a full blown 'theory'' [16] , though TJ does have conceptual features and tenets. Generally, proponents tend to adopt the lens standpoint which understands TJ as 'the study of the role of law as a therapeutic agent'. [17] This oft cited definition, however, does not adequately capture all the 'forms of life' [18] that TJ has come to take. While in its formative years, its scope was limited to encouraging "new" forms of scholarship with a view to reform, [19] it is no longer accurate to characterise TJ as simply a 'field of intellectual discourse'. [20] The starting point for this article is to suggest that we should think of TJ as comprising of three broad dimensions:

  1. philosophical: its normative orientation(s), assumptions and ideals;

  2. empirical: comprising of two key components: 1) the study of therapeutic/anti-therapeutic/neutral consequences of the law; and 2) drawing on empirical insights from the behavioural and social sciences to see how they can be applied to law to maximise therapeutic effects; and

  3. practical: wherein the philosophical dimension converges with the products of its empirical dimension and are translated into practice.

As we will shortly see, these constitutive dimensions are interrelated, meaning that a lack of coherence or congruity in one of the dimensions will breed tensions, ambiguities and contradictions in the others.

A recurring criticism of TJ is that it is characteristically amorphous and vague [21] yet there has been little effort on the part of TJ proponents to address this. Instead, proponents have defended these characteristics on the basis that being more concrete would stifle innovation [22] and have buttressed this position with broad-brush frameworks for the design and application of TJ. [23] This spirit, combined with the mainstreaming agenda, explains why there has been scant critical attention paid to how the fluid characteristics of TJ manifest in the criminal justice setting and what the implications of this might be (positive, negative or otherwise). This article seeks to address this gap. It begins by critically examining the under-development of TJ's philosophical and empirical dimensions in the criminal justice context. It then looks at two case studies of "applied" TJ to foreground how this under-development manifests in practice. In the process, it sheds new light on the complex relationship between TJ and criminal justice, and identifies critical areas in need of further development. The article concludes by considering how some of the key shortcomings identified could be addressed in order for TJ to bloom more fully in the criminal justice setting.


 

The philosophical dimension

In examining the therapeutic, anti-therapeutic and neutral consequences of the law in action, TJ is 'largely a form of consequentialism' [24] , but unlike fully consequentialist theories, TJ abandons its consequentialist leanings at the point of normative judgement on the basis that 'empirical verification of the truth concerning a particular set of facts cannot justify a normative conclusion'. [25] In other words, even once it is empirically established that something in the law has consequences (therapeutic, anti-therapeutic or otherwise), what then follows is a 'normative question' about 'what, if anything, should we do about that rule?' which TJ 'does not really provide answers' to. [26] In this way, it is not strictly normative, but nor is it entirely value-free. For instance, it is said that TJ 'suggests that, other things being equal, positive therapeutic effects are desirable, and that antitherapeutic effects are undesirable and should be avoided or minimized'. [27] Yet, as Petrila observes, 'clear decision rules for determining when "other things are equal" and whether and under what circumstances therapeutic values must yield to other values' remain unstated. [28] While TJ lacks a 'precise normative weight', [29] it nonetheless has a normative orientation and agenda for reform. This imprecise standpoint has led some to argue that if TJ is to make serious progress in its reform agenda, then it must adopt a normative framework or stance. [30]

Consequentialist thinking in criminal justice has primarily been given life through utilitarianism. Indeed, Gal and Wexler have suggested that the agenda of TJ is based on a 'utilitarian philosophy that measures the success of reactions to crime according to the societal and personal benefits they deliver, rather than by merely the level of 'just deserts' they convey'. [31] In line with these utilitarian underpinnings, proponents claim that TJ promotes 'problem-solving, future oriented legal practices to make legal interventions more therapeutic for stakeholders' and that it prioritises 'models that prevent further crime, incarceration, and their negative outcomes for all involved'. [32] In keeping with these ideals, TJ is said to endorse 'practices that promote rehabilitation and reintegration'. [33] Elsewhere, claims are made that '[d]ealing with problems of sentencing, offender rehabilitation, and deterrence' are an appropriate concern for TJ because they involve 'aspects of psychological functioning and social adjustment'. [34] But utilitarianism is not the only ethical underpinning of TJ. In discussing how TJ shares normative assumptions with the New Public Law scholarship, Wexler also aligns TJ with a deontological position. [35] In criminal justice, deontology (following Kant) gives primacy to individual autonomy, rationality, rights and obligations. This position and the retributive, desert-based approaches it gives rise to cannot readily be reconciled with forward looking utilitarian approaches (or at least not without significant compromise). There is a tension here that warrants further interrogation. In support of her argument that TJ 'should take a normative stance regarding offender rights' [36] with respect to offender rehabilitation, Birgden proposes an ethical framework to balance 'justice and therapeutic principles' - that is, deontological and consequentialist positions - and suggests that TJ in and of itself can aid in striking that balance. Leaving aside the paradoxical method of using TJ as a 'framework' [37] to generate a normative framework for TJ when it has been stated that it does not provide answers to normative balancing dilemmas, the larger issue is that the proposed framework has neither been endorsed by other TJ proponents, nor has it been subject to further consideration (perhaps because of the paradox identified). Important questions concerning the 'hybrid' [38] ethical positioning of TJ in criminal justice remain unanswered. How do the tensions between utilitarian and deontological positions play out in practice? Does one position yield to the other? And, if so, what pattern emerges? There is a need to engage further with these ethical questions in order to advance our understanding of the relationship between TJ and existing criminal justice thinking and its attendant practices.

TJ is also imprecisely grounded in assumptions about 'law as an instrument of healing and rehabilitation' [39] in the criminal justice context. This suggests that healing should not be read as analogous to rehabilitation, however, the distinction is not elaborated. Proponents further claim that there is a healing or 'therapeutic power' [40] inherent in the criminal law that can and should be harnessed, and that the law has an 'enormous potential to heal'. [41] What constitutes healing, the object of healing (that is, what is being healed), and the forms healing could/should take, however, all remain unspecified. Furthermore, no studies have been located that have examined the healing claims that ground this assumption. Nevertheless, proponents typically view the claimed emphasis on healing as posing a challenge to conventional, punitive responses to lawbreaking. For instance, in relation to what a TJ approach offers drug-dependent defendants cycling through the criminal justice system, Winick and Wexler suggest that it enlists 'law and the courts in the battle against addiction. Not with a punitive approach, but with a pragmatic, empirically grounded therapeutic orientation: one that promotes healing through law'. [42] Yet we are left with no further explanation of how healing is or ought to be realised in practical terms. We are also given no guidance as to how a healing approach should be viewed in relation to existing criminal justice practices and the values that inform them. This is significant because in the broader TJ literature, proponents assert that 'therapeutic goals should only be achieved within the limits of considerations of justice', and that '[l]egal actors should seek to apply the law therapeutically but only when consistent with these values'. [43] Winick and Wexler's statement above pits a 'healing through law' approach or response against a punitive one.

There is a contradiction here between the claim that fundamental justice concerns should not be negated at the expense of pursuing therapeutic alternatives and Winick and Wexler's contrasting of healing and punitive approaches. Are we to take from their statement that a healing approach should be read as a substitute for a conventional (punitive) response to wrongdoing? Given that punishment is a retributive justice concern, such a reading would undermine the claim that TJ-informed pursuits must not eclipse fundamental justice concerns. Or is it that, following the 'hybrid' normative orientation of TJ, a healing approach should be read as compatible with a conventional response? If the latter, then at what point should a TJ approach surrender to other justice values like retributivism and vice versa? In contrasting a TJ approach with a punitive response, TJ positions itself as the more attractive alternative, yet, several studies have identified punitive aspects of the TJ approach to drug-dependent defendants that would appear to erode this distinction. [44]

While the foundations, parameters and aims of TJ in criminal justice remain far from clear, oddly, it is common to find references to TJ 'principles' in the literature. [45] While there are no agreed-upon TJ principles, proponents themselves often perpetuate this fallacy. [46] For example, Wexler states that the proposed mainstreaming project 'is an effort to apply principles of therapeutic jurisprudence (TJ) in the ordinary criminal and juvenile law systems, beyond the setting of special "problem-solving courts", such as drug treatment courts and mental health courts, where TJ is best known'. [47] Wexler does not, however, go on to articulate what these 'principles' of TJ are. A number of key components or features of drug courts are claimed to be consistent with TJ 'principles', [48] yet precisely how the they relate remains unspecified. Given its shaky philosophical foundations and confusion concerning its conceptualisation, it is perhaps not surprising that TJ has not been reduced to an agreed-upon set of principles. But this incongruity is concerning because it renders TJ vulnerable on two fronts. Firstly, it undermines current mainstreaming efforts. If there are no principles of TJ then what exactly is being proposed? Secondly, and related to the first, a lack of clearly specified principles means that there is nothing to safeguard against alleged applications of TJ that conflict with its stated goals and ideals. This means that TJ can be (and often is) "all things to all people". [49] Guiding principles are particularly important in the criminal justice context where alternative approaches are subject to 'volatile and contradictory' [50] interests and demands and risk becoming 'a catchall phrase to be used for whatever purpose a government wants, usually far removed from its original purposes'. [51]

As noted in the Introduction, there has been a lack of critical engagement with significant deficits in the philosophical dimension of TJ and how the problems this under-development gives rise to manifest in the criminal justice setting. The various claims made by TJ proponents lack depth, coherence and rigour, making it difficult to: a) unpick the complex relationship between TJ and conventional criminal justice thinking and practices; and b) identify what a TJ approach offers the criminal justice setting. As has been demonstrated, the amorphous and vague normative orientations, assumptions and ideals of TJ generate ambiguities, tensions and contradictions. [52] The next two sections will further illustrate the ways in which the philosophical deficits identified also impact its other dimensions.


 

The empirical dimension

The empirical dimension of TJ, informed by its philosophical dimension, can be summarised as two [53] general directives: 1) a call to use 'the tools of the social sciences' [54] to empirically examine the therapeutic and anti-therapeutic consequences of legal rules, procedures and actors and their effects on wellbeing; and 2) a call to look for 'promising developments' [55] from the behavioural and social sciences, such as 'psychology, psychiatry, criminology, and social work', and to consider how 'those insights can be imported into the legal system' [56] provided they can work within the bounds of justice and due process concerns. In reality, few empirical pursuits in criminal justice can follow through on the first directive. [57] This is because key concepts such as "therapeutic", "anti-therapeutic" and "wellbeing" lack clear conceptualisation, making them difficult to operationalise for the purposes of empirical study. Indeed many have criticised TJ for its vague definition of "therapeutic" and highlighted the empirical and practical problems this gives rise to. [58] Proponents defend the vague definitional stance of TJ on the basis that it enables 'commentators to roam within the intuitive and common sense contours of the concept'. [59] Furthermore, they insist that TJ 'does not (and ought not) provide a tight definition of "therapeutic", arguing that this 'flexibility has left scholars free to examine the issue in a number of important and interesting contexts'. [60] Moreover, Winick puts the responsibility on researchers to 'settle on the definition of therapeutic that they will apply in their work' and to make this explicit. [61] The concept of "wellbeing" is also not explicitly defined despite this being the cornerstone of TJ. [62] This raises important questions: wellbeing for whom and in what circumstances? Such questions are particularly pertinent in a criminal justice setting because something that enhances wellbeing for one party (e.g. society or a victim) may not for another party (e.g. a perpetrator). Indeed proponents readily admit [63] that in many cases, the "therapeutic" option may actually have a greater negative impact on a perpetrator than would be the case if the alternative option was not taken. Elsewhere, Winick acknowledges that '[i]n cases in which a rule of law may impose conflicting therapeutic effects on different groups, there…may be disagreement about which group's interests should be considered more important' and states that while TJ 'prefers to leave these matters open for analysis and scholarly debate…special efforts should be made to take account of the patient (or consumer) viewpoint concerning what is therapeutic'. [64] In reality, however, the criminal justice system typically has little regard for its "consumers" so it remains unclear how Winick's suggestion should be read in this context.

To date, few studies have examined the therapeutic consequences of practical applications of TJ in criminal justice on wellbeing [65] and no studies have been located that have measured TJ applications according to their healing claims. Roderick and Krumholtz argue that if the 'broad and vague definitions of TJ' are to be kept 'in order to stimulate empirical studies, then these definitions are essentially ideologically and not conceptually or theoretically based'. [66] This, in turn, further exacerbates 'the methodological issues involved in operationalizing theoretical concepts necessary to adequately conduct empirical studies'. [67] The first empirical directive of TJ, therefore, risks being rendered implausible because, while a number of concepts have been floated in an effort to describe the broad goals and ideals of TJ in criminal justice (such as "healing", "rehabilitation", "reintegration", "problem-solving", "wellbeing", and "therapeutic"),none have been conceptualised in relation to it. This is problematic because, as Raynor and Robinson observe, even seemingly common sense ideas like 'rehabilitation' do not have clearly established shared meanings and objectives. [68] The absence of clear definitions for the conceptual tenets of TJ limit the scope for rigorous empirical work framed by a TJ perspective which, in turn, threatens the reliability and validity of the findings yielded. These unresolved empirical issues also pose a threat to the legitimacy of TJ in and of itself because 'without specifically and precisely defining and conceptualizing therapeutic jurisprudence, social scientists cannot study the validity (accuracy) and reliability (consistency) of its theoretical constructs'. [69] On the one hand, it could be argued that this does not matter because TJ is not and has no intention to be a 'full-blown' theory [70] but on the other, a scarcity of empirical examinations also means that TJ lacks the evidence required to support its claims and goals.

Because institutional settings for TJ such as problem solving courts/other specialist courts are embedded within the criminal justice system, outcome measures are often more narrowly defined in terms of reduced recidivism and cost savings. This means that other outcomes that are important from a TJ perspective, such as promoting healing or wellbeing, are infrequently examined. This is not to say that applications of TJ cannot be measured against these claims and goals but in practice, this is found wanting. It is also difficult (empirically-speaking) to isolate the impact of TJ-informed initiatives from the many other factors at work in the lives of criminalised persons who have a myriad of personal, social and systemic needs. Isolating aspects or features of TJ from the institutional settings in which they are applied in practice is also challenging. [71] For instance, the connection between TJ and drug courts has been so firmly cemented that TJ proponents have felt the need to convey that drug courts and TJ are merely related 'vectors…moving in the same direction' and not to mistake them as 'identical concepts'. [72] Instead, drug courts are to be understood as 'applications of therapeutic jurisprudence'. [73] The conflation of drug courts and TJ is, however, understandable given the ambiguity surrounding the conceptualisation of TJ and the absence of specified TJ principles in the criminal justice setting. [74]

The second empirical directive - the call to identify promising interdisciplinary insights and see how these might be able to be applied to the law to meet therapeutic ends - also invites interrogation. The terminology 'promising developments' [75] is again vague: for whom are those developments promising and by what standards are they deemed promising? Within any disciplinary domain or body of scholarship there are always debates and disputes. Legal scholars and/or practitioners embarking on this second directive might not be cognisant of these considerations, or they may only look at particular findings that support their therapeutic proposals and neglect (intentionally or otherwise) other findings that might caution against such an approach. A number of TJ scholars have utilised evidence from behavioural science and social science literatures such as procedural justice, [76] desistance studies, [77] strength-based approaches such as the Good Lives Model, [78] and positive criminology more generally [79] to inform suggestions for reforming or reapplying the law to meet more therapeutic ends. Overall, the most extensively drawn on and endorsed developments have come from behavioural psychology and cognitive behavioural psychology. [80] Techniques of the latter are deemed particularly 'promising' because they are 'geared towards teaching offenders certain problem-solving skills: to understand the chain of events that often leads to criminality, to anticipate high-risk situations, and to learn to stop and think so as to avoid high-risk situations or adequately cope with such situations as they arise'. [81] This statement provides important insight into how lawbreaking is viewed under a TJ approach: perpetrators are rational actors and lawbreaking is a maladaptive behaviour that can be mitigated through cognitive "skilling up".

King et al. argue that it is 'understandable that a key approach' of TJ is to draw on insights from behavioural sciences in relation to 'compliance with authority and the nature of, and motivation for behavioural change' because the promotion of 'compliance' and 'behavioural change' are key concerns of the justice system. [82] However, many criminal justice scholars would take issue with the suggestion that a key justice concern is promoting behavioural change. Indeed, the conventional (punitive) approach to wrongdoing and the ensuing crisis that Western criminal justice systems now face as a result of this approach (e.g. rising imprisonment, overcrowding, violence and recidivism) indicates that behavioural change is either not a primary concern or, if it is, then this is poorly translated into approaches that address it. Moreover, while a focus on compliance might serve the justification of TJ on deontological grounds, it is far from clear how this would assist in the realisation of its claims to promote healing.

The alignment of TJ with "what works" research is also problematic. Wexler states that he is interested in how "what works" developments around rehabilitation 'might be brought into the law' [83] and the mainstreaming project asserts that TJ approaches 'draw on what we know works from other disciplines'. [84] While it is understandable that TJ proponents would be interest in "what works" and want to position TJ as evidence-based given its empirical directives, the statistical frameworks used to analyse aggregate data and the corresponding demands and standards that must be met to be deemed "what works" evidence-based research necessarily means that this evidence is limited in a number of ways. Firstly, it often fails to consider important dynamics such as race, gender and class. For instance, many critical scholars have drawn attention to how dominant evidence-based approaches in offender rehabilitation adopt a perspective that is gender, race and class-neutral which means they are unable to recognise or accommodate the differential needs and interests of socially marginalised groups. [85] This, in turn, can have negative impacts on those groups. Furthermore, in relation to the studies themselves, the perspectives of those who are the subject of interventions and programs being studied are largely absent which means that the evidence-base is limited to quantifiable knowledge about the outcomes of these initiatives. The lived impact and other possible effects or implications are not captured. This is arguably at odds with a TJ perspective. How is one able to answer the sorts of normative questions invited by TJ, such as whether a legal intervention contributes to healing or has therapeutic/anti-therapeutic implications or how the law can be modified to bring about therapeutic outcomes, on the basis of largely quantitative "what works" research? Aspects of programs or interventions that might contribute to healing or therapeutic outcomes are generally excluded from the scope of such research. Given the broad normative emphasis of TJ, moving away from the narrow way in which evidence is understood under the "what works" frame should be an important concern for proponents. [86] This does not mean that narrower measures like recidivism are not important, but rather it is to question any assumption that "what works" evidence can resolve the sort of normative considerations that supposedly lie at the heart of a TJ perspective. The "what works" movement in criminal justice was borne out of a rational desire to establish evidence on what criminal justice interventions "work" (according to positivist standards, inasmuch as they produce an effect size) to reduce crime and thus be deemed worthy of investment. [87] These political interests do not sit well with the alleged healing orientation of TJ in criminal justice and the promotion of wellbeing more generally. The challenge for TJ is to ensure that it strikes the right balance in its emergent evidence base.

Primarily drawing on insights from behavioural psychology and cognitive behavioural psychology and commitments to "what works" may help to realise some of the ideals and goals of TJ in criminal justice. However, other forms of research that would seem important for TJ to engage with if it is to realise other ideals and goals, in particular its healing claims, have largely been overlooked. For instance, critical criminology, with its wealth of empirical evidence garnered from examining the lived experiences and impacts of law as an enabling and disabling force in the lives of criminalised persons (the majority of whom are marginalised and are themselves victims of crime) appears to have much to offer TJ if it is genuinely interested in considering how criminal law and justice could be reformed to better meet the diverse needs and interests of criminalised persons. Yet, to date, insights from this body of scholarship have received scant consideration. This suggests that TJ may not be as dedicated to healing as it claims and/or that its remit in criminal justice may in fact be more narrowly focused on offender rehabilitation and reintegration.


 

Under-development meets practice: Two case studies of "applied" TJ

As noted in the Introduction, there are numerous practical applications of TJ across a broad spectrum of criminal justice domains. There is not the space to adequately engage with all of these here. Instead, this section will focus on two distinct examples of institutional settings for the application of TJ that highlight the cumulative problematics of TJ's under-development in its philosophical and empirical domains: drug courts; and a compulsory drug treatment prison.

 

Drug courts

 

Drug courts are one of the most widely recognised examples of "applied" TJ in criminal justice. In this institutional setting, TJ is applied in two key ways: 1) by suggesting an underlying approach to drug court participants that can be adopted; and 2) offering a range of behavioural/cognitive behavioural psychology insights and associated tools and techniques that can be drawn on to improve the therapeutic functioning of drug courts and their personnel, in particular, judicial officers. With respect to the first, Wexler and King assert that the 'TJ approach does not discount the weaknesses that…participants have shown in that they have committed offences as a result of a substance abuse problem that hitherto they have not been able to overcome' but at the same time, the TJ approach also 'suggests that these participants are…the source and strengths and possible solutions for their problems' and that the court 'should acknowledge both aspects of their nature, involving participants' strengths in aid of the change process and facilitating them [in] addressing their weaknesses'. [88] Such an approach appears to harmonise the 'hybrid' ethical standpoints of TJ: the forward-looking, strength-based advocacy fits with its broad utilitarian ideals but at the same time the approach is sufficiently deontological in that individuals are deemed responsible for their wrongdoing.

In aid of the TJ approach outlined above, many drug courts employ insights, tools and techniques advocated by TJ proponents to 'maximize their therapeutic potential.' [89] These inform the courts' structure and operations and guide the conduct of key personnel. For instance, behavioural contracting is advocated as a technique to engender motivation and promote compliance which, it is said, 'can substantially increase the likelihood of treatment success'. [90] Winick asserts that 'the combination of positive reinforcement to encourage compliance and adverse conditioning to decrease or extinguish noncompliant behavior can be quite effective' and that it facilitates 'the progressive shaping of the individual's behavior'. [91] Judicial officers are encouraged to be aware of the psychology behind this technique and apply it in practice. For example, Winick suggests that rewarding an individual for having clean drug test with praise from the judicial officer can 'help shape future behaviors' and that reinforcing positive behaviour 'builds much needed self-esteem and self-efficacy'. [92] However, it is important to note that no studies have been located that empirically examine whether reinforcement of positive behaviour by a judicial officer has an effect on either self-esteem building or self-efficacy building. [93] Motivational Interviewing is another technique advocated by TJ proponents that judicial officers can use to 'encourage offenders to…face their problems…and deal with them'. [94] Honesty and wilful disclosure are also integral components of drug court processes and are often valued above all else. This position may be inspired by statements made by TJ proponents claiming that perpetrators are often in denial about their problems. [95] These insights, tools and techniques are all drawn from cognitive behavioural research.

Drug and other problem-solving courts are championed by TJ proponents as having therapeutic value because they 'intervene in social and behavioural problems that are caused by chronic, underlying issues that can seriously impair both the individual's and the community's quality of life'. [96] But a TJ approach also explicitly stresses that '[t]he individual must confront and solve her own problems and assume the primary responsibility for doing so'. [97] There is an apparent contradiction in these statements. On the one hand, Winick implies that there exists a social problem or issue but on the other, he states that only the individual can solve their problems thus individualising what was before a social problem. A further ambiguity is the acceptability of coercion in drug courts. While Winick denies that coercion exists at the program entry stage, [98] TJ proponents openly admit that drug court practices make use of 'the coercive power of the court to encourage the addicted offender to succeed in completing the treatment program'. [99] In this context, coercion is viewed as an 'acceptable' and 'necessary' element of drug courts and the 'recovery process' more generally. [100] Wexler and King even go so far as to argue that, '[p]ractices that are regarded as coercive in mainstream courts-such as the use of imprisonment' are deemed as 'worthwhile and therapeutic' in drug courts because they are used to 'promote obedience in relation to program conditions which participants have consented to upon entering' the program. [101] But it is therapeutic to imprison participants for continuing to use drugs so that they remain committed to rehabilitation? Should the consideration of the participant's wellbeing through continued engagement in treatment (as opposed to terminating their program) trump other wellbeing considerations? Given Winick and Wexler's earlier contrasting of a TJ approach with a conventional punitive response, advocating the use of imprisonment, even for benevolent reasons, seems contradictory. This reinforces tensions in the philosophical foundation of TJ. Moreover, there is no conclusive evidence to suggest that swift and certain responses are effective [102] and the impact of graduated sanctions on other measures such as the wellbeing of participants remain largely unexplored. [103]   

The Compulsory Drug Treatment Correctional Centre (CDTCC)

 

TJ ideals, tools and techniques have been integrated with the Good Lives Model (GLM) and applied to correctional policy and practice at the Compulsory Drug Treatment Correctional Centre (CDTCC) in New South Wales, Australia - a staged program where perpetrators are able to increase their leave from prison for day and work release, working towards community integration as they progressively meet their treatment and rehabilitation conditions. Selected repeat drug-dependent perpetrators who appear to have 'exhausted the diversionary programs available' are sent to the Centre by the Drug Court of New South Wales. [104] It is claimed that providing 'participants with the resources to develop a good life and ensure gradual and supported community reintegration before the end of sentence' and the emphasis on "therapeutic" ways of engaging and motivating perpetrators to change rather than coercing or forcing them is an attempt 'to mitigate the potentially harmful effects of the compulsory treatment law'. [105] The authors admit that 'compulsory treatment is rejected by therapeutic jurisprudence' but nevertheless contend that the Centre has been established 'to support the core values of offender freedom and well-being'. [106] Notwithstanding the irony of employing TJ to moderate an intervention that it is said to reject, the question remains whether it is possible for TJ goals and therapeutic outcomes to be pursued within a compulsory treatment prison? [107] This case study serves to highlight the ways in which TJ can be misappropriated in practice and how its continued under-development facilitates this. If TJ had a clear philosophical foundation, then paradoxical applications such as this that potentially undermine its goals and ideals would not come to pass.

As noted earlier, TJ proponents suggest that researchers should make explicit therapeutic definitions applied to their empirical work, however, there is no mention of the role of practitioners in settling on and explicating the therapeutic definitions that they are applying to their practices. As these case studies illustrate, the absence of principles to guide applications of TJ in practice coupled with imprecise philosophical bearings can give rise to significant tensions and ambiguities. Conceptual confusion about the goals and limits of TJ in criminal justice means that its applications can be unpredictable. Whereas the adoption of a range of behavioural/cognitive behavioural psychology tools and techniques designed to improve the therapeutic function of legal actors is, for the most part, a consistent (but limited) application of TJ in practice, its application in a compulsory treatment prison setting demonstrates that the parameters of TJ are so broad that it allows practices elsewhere rejected by it to be embraced. While it is true that compulsory drug treatment correctional centres are not widespread, the same cannot be said for drug courts. Given that problem-solving courts (and drug courts in particular) are being heralded as markers of the "successful" application of TJ in criminal justice, we should not dismiss the conceptual paradoxes that the application of TJ in these settings gives rise to. Both case studies are cogent exemplars of the price of letting "one hundred flowers bloom" in a legal field that is renowned for the cooption and subsumption of adjuncts to mainstream criminal law and justice. While this speaks to a political and/or institutional problem, the problem is also theoretical; arising from the under-development of TJ's philosophical and empirical dimensions. In the next and final section, I will consider what can be done to address some of the philosophical, empirical and, in turn, practical shortcomings identified.

 


 

Hope springs internally: concluding thoughts on a way forward

TJ has gained significant traction in many Western criminal justice systems over the last thirty years, yet its philosophical and empirical dimensions remain under-developed. As previously noted, generally, proponents make no apologies for the lack of specificity of TJ constructs, concepts or ideals, claiming that being more concrete might stifle innovation. While some are of the expressed opinion that it is better to "let one hundred flowers bloom", the decision not to give consideration to longstanding critical areas in need of development comes at a price, especially in the criminal justice context. On the surface, TJ is promoted as a positive, "therapeutic" alternative to conventional criminal justice thinking and practices and claims to promote healing through law, but to date, there is little evidence to support its healing claims. In part, this is due to the empirical shortcomings identified with respect to measuring TJ concepts, and the fact that proponents have drawn on limited bodies of scholarship to inform TJ approaches, techniques and initiatives. But it also reflects a deeper problem concerning the shaky philosophical foundation of TJ. In the absence of a firm foundation from which to ground theory, practice, and principles, precisely what TJ offers criminal justice remains unclear. The promulgation of its protean nature means that TJ has become "all things to all people" which threatens its legitimacy in criminal justice and poses significant challenges to its mainstreaming agenda. Important questions for TJ still loom: can it provide a better way of "doing" justice through harnessing the alleged therapeutic power and healing potential of the law as it claims? Does it have the capacity to offer meaningful proposals or reforms that promote healing and improve the wellbeing of those affected by the anti-therapeutic consequences of conventional criminal justice practices? Or is it yet another emperor, in a long line of emperors in criminal justice, with no clothes? In what remains of this paper, I will attempt to sketch how these issues might be addressed in each dimension.

Philosophical

 

TJ lacks a firm philosophical foundation to ground itself in which, in turn, limits the development of its other dimensions. This could be addressed by giving further, deeper thought to what lies at the heart of TJ in the criminal justice context. What is the ethical core of TJ? Is it about wellbeing, healing, transformation or something else? How does this relate to/differ from retributivist ethics for example? Consideration also needs to be given to the overall standpoint that informs that core. For instance, a feminist and/or intersectional standpoint might start from an assumption of oppression and thus be working towards freedom. An Aristotelian vision might consider what it means to flourish ethically-speaking. A liberal theory standpoint might take a more reductionist perspective. And so on. Thinking about its core ethics will also help to clarify the normative orientation of TJ in criminal justice. At the very least, I suggest that TJ needs a synthesised account of what it is (and what it is not) in ethical-theoretical terms. Once this foundation is established, attention can be turned to other neglected areas in need of development on the level of theory, such as specifying the aims and limits of TJ in criminal justice. [108]

Empirical

There are two ways in which TJ's empirical dimension could be developed further. One would be to draw on insights beyond the realm of cognitive behaviouralism/behavioural psychology. This would make TJ better equipped to attend to the sorts of normative questions it invites with respect to law being a social force that can engender anti-therapeutic consequences. On this score, I suggest that critical criminology is uniquely positioned to provide important, nuanced insight. As noted earlier, to date, this body of scholarship has largely been overlooked by TJ proponents. A second way in which the empirical dimension of TJ could be advanced would be to utilise constructs that measure the sorts of outcomes that are important from a TJ perspective. [109] This would help to counter some of the difficulties TJ currently faces in providing evidence for the reliability and validity of its conceptual tenets, claims and goals. However, I query whether such a move might be premature in the absence of a sound ethical-theoretical foundation. In other words, until a clearer understanding of the aims of TJ in criminal justice are established, it is reasonable to hold that nothing can be measured. In order to operationalise concepts, goals and ideals definitions are required, but at the moment those definitions are found wanting. [110]

Practical

The two case studies presented illustrated the various ways in which the under-development of TJ's philosophical and empirical dimensions manifest in practice. A starting point to counter this would be to specify an agreed-upon set of TJ principles for the criminal justice context. This would help safeguard TJ against the perpetuation of its current status as "all things to all people". It would also help to mitigate the paradoxical risk that its applications can (and often do) result in anti-therapeutic consequences. Again, however, an adequate ethical-theoretical foundation needs to be established before TJ principles can be specified. A further way in which some of the practical shortcomings of TJ in criminal justice could be addressed would be to ensure that practitioners explicitly specify the ways in which TJ is being applied in practice. This would help combat the problem of conflating TJ with particular practices or processes that do not reflect its concepts, goals and ideals. This, too, is contingent on there being clarity as to what those concepts, goals and ideals are. I am not suggesting that these proposals will resolve the practical difficulties faced by TJ. As noted earlier, it is inevitable that processes, practices and outcomes will vary considerably and that these variations will, in part, be governed and shaped by external factors (e.g. social and political) that are beyond the control of institutional enactors. But what I am suggesting is that more can be done internally to help guard the integrity of practical applications of TJ.

Attending to critical areas in need of development in the ways suggested above will help to strengthen and advance the theory and practice of TJ in the criminal justice setting. [111] The neglected groundwork canvassed in this article is also critical to the pursuit of any mainstreaming agenda. If proponents want TJ to fully bloom in the criminal justice context, then they must take seriously the existing internal deficits identified across its interrelated philosophical, empirical, and practical dimensions.



[1] David B Wexler, 'Putting mental health into mental health law: Therapeutic jurisprudence' (1992) 16 Law and Human Behavior 27; David B Wexler, 'Two decades of therapeutic jurisprudence' (2008) 24 Touro Law Review 17.

[2] David B Wexler, 'Therapeutic jurisprudence and its application to criminal justice research and development' (2010) 7 Irish Probation Journal 94, 95.

[3] David B Wexler, 'Inducing therapeutic compliance through the criminal law' (1990) 14 Law & Psychology Review 43, 43.

[4] Kathleen Daly and Elena Marchetti, 'Innovative justice processes: restorative justice, indigenous justice, and therapeutic jurisprudence' in Marinella Marmo, William De Lint and Darren Palmer (eds), Crime and justice: A guide to criminology (Thompson Reuters, 4th ed, 2012).

[5] Bruce J Winick and David B Wexler, 'Therapeutic jurisprudence as an underlying framework' in Bruce J Winick and David B Wexler (eds), Judging in a therapeutic key: Therapeutic jurisprudence and the courts (Carolina Academic Press, 2003), 105.

[6] Peggy F Hora and William G Schma, 'Therapeutic jurisprudence' (1998) 82 Judicature 9, 10.

[7] Bruce J Winick and David B Wexler, 'Drug treatment court: Therapeutic jurisprudence applied' (2002) 18 Touro Law Review 479, 485.

[8] Pauline Spencer, 'From alternative to the new normal: Therapeutic jurisprudence in the mainstream' (2014) 39 Alternative Law Journal 222; David B Wexler, 'The international and interdisciplinary project to mainstream therapeutic jurisprudence (TJ) in criminal courts: An update, a law school component, and an Invitation' (2014) 14 Arizona Legal Studies; David B Wexler, 'Getting started with the mainstreaming of therapeutic jurisprudence in criminal cases: Tips on how and where to begin' (2016) 14 Revista Española de Investigación Criminológica 1).

[9] See, for example, Kathleen Daly, 'Restorative justice: The real story' (2002) 4 Punishment and Society 55; Andrew Von Hirsch, Julian Roberts, Anthony E Bottoms et al, Restorative justice and criminal justice: Competing or reconcilable paradigms (Hart Publishing, 2003); Joanna Shapland, Anne Atkinson, Helen Atkinson et al, 'Situating restorative justice within criminal justice' (2006) 10 Theoretical Criminology 505.

[10] David B Wexler, 'New directions in therapeutic jurisprudence: Breaking the bounds of conventional mental health law scholarship' (1993) 10 New York Law School Journal of Human Rights 759.

[11] Wexler, above n 2.

[12] David B Wexler, 'Therapeutic jurisprudence and changing conceptions of legal scholarship' (1993) 11 Behavioral Sciences & the Law 17.

[13] Bruce J Winick, 'The jurisprudence of therapeutic jurisprudence' (1997) 3 Psychology, Public Policy, and Law 184.

[14] Warren Brookbanks, 'Therapeutic jurisprudence: Implications for judging' (2003) New Zealand Law Journal 463; Samantha Jeffries, 'How justice 'gets done': Politics, managerialism, consumerism, and therapeutic jurisprudence' (2005) 17 Current Issues in Criminal Justice 254. But whether TJ has actually reached paradigmatic status is, at best, questionable. See also Nigel Stobbs, 'The nature of juristic paradigms: Exploring the theoretical and conceptual relationship between adversarialism and therapeutic jurisprudence' (2011) Washington University Jurisprudence Review 97, 176 who suggests that that TJ could be the 'core element' of a post-adversarial method and that it has the capacity to 'provide exemplars for the resolution of problems' where the traditional adversarial criminal justice system falls short thereby providing 'evidence of a disciplinary crisis in the Kuhnian sense'. But as I will go on to demonstrate, TJ is subsumed by the existing criminal justice system. Subsequently, I query whether it does possess the capacity to resolve the alleged 'disciplinary crisis' as Stobbs claims.

[15] Warren Brookbanks, 'Therapeutic jurisprudence: Conceiving an ethical framework' (2001) 8 Journal of Law and Medicine 328, 332; Arie Freiberg, 'Therapeutic jurisprudence in Australia: Paradigm shift or pragmatic incrementalism?' (2003) 20 Law in Context 6, 7; Arie Freiberg, 'Problem-oriented courts: An update' (2005) 14 Journal of Judicial Administration 178, 214; Scott Senjo and Leslie A Leip, 'Testing therapeutic jurisprudence theory: An empirical assessment of the drug court process' (2001) 3 Western Criminology Review.

[16] David B Wexler, 'From theory to practice and back again in therapeutic jurisprudence: Now comes the hard part' (2011) 37 Monash University Law Review 33, 33.

[17] David B Wexler and Bruce J Winick, Law in a therapeutic key: Developments in therapeutic jurisprudence (Carolina Academic Press, 1996), xvii.

[18] Ludwig Wittgenstein, Philosophical investigations (Basil Blackwell, 1958), 226, emphasis added.

[19] David B Wexler and Bruce J Winick, 'Therapeutic jurisprudence as a new research tool' in David B Wexler and Bruce J Winick (eds), Essays in therapeutic jurisprudence (Carolina Academic Press, 1991).

[20] Arie Freiberg, 'Post-adversarial and post-inquisitorial justice: Transcending traditional penological paradigms' (2010) Monash University Faculty of Law Legal Studies Research Paper No. 2010/17 , 9. Prominent TJ proponents accept that TJ 'has moved from theory to practice' and that there is an 'actual practice of TJ': Wexler, above n 16, 38. In contrast, Freckelton contends that TJ is 'no more and no less than "the study of the role of the law as a therapeutic agent"' but later undermines this contention by acknowledging the 'practical orientation' of TJ and its 'reforms': Ian Frekelton, 'Therapeutic jurisprudence misunderstood and misrepresented: The price and risks of influence' (2008) 30 Thomas Jefferson Law Review 575, 576-577, 583. See also King et al. claiming that TJ 'is a research program only': Michael King, Arie Freiberg, Becky Batagol et al. Non-adversarial justice (Federation Press, 2009), 33.

[21] Christopher Slobogin, 'Therapeutic jurisprudence: Five dilemmas to ponder' (1995) 1 Psychology, Public Policy, and Law 193; Bruce A Arrigo, 'The ethics of therapeutic jurisprudence: A critical and theoretical enquiry of law, psychology and crime' (2004) 11 Psychiatry, Psychology and Law 23; Dennis Roderick and Susan T Krumholz, 'Much ado about nothing? A critical examination of therapeutic jurisprudence' (2006) 1 Trends and Issues in Scientific Evidence 201.

[22] See generally, David B Wexler, 'Reflections on the scope of therapeutic jurisprudence' (1995) 1

Psychology, Public Policy, and Law 220.

[23] See, for example, Wexler's Therapeutic Design of the Law (TDL) and Therapeutic Action of the Law (TAL) framework and the associated 'wine and bottles' metaphor: David B Wexler, 'New wine in new bottles: The need to sketch a therapeutic jurisprudence "code" of proposed criminal processes and practices' (2014) 7 Arizona Summit Law Review 463; David B Wexler, 'Moving forward on mainstreaming therapeutic jurisprudence: An ongoing process to facilitate the therapeutic design and application of the law' in Warren Brookbanks (ed), Therapeutic jurisprudence: New Zealand perspectives (Thompson Reuters, 2015).

[24] Winick, above n 13, 188.

[25] Ibid , 190.

[26] Wexler, above n 2, 97.

[27] Winick, above n 13, 188, emphasis in original.

[28] John Petrila, 'Paternalism and the unrealised promise of Essays in Therapeutic Jurisprudence' in David B Wexler and Bruce J Winick (eds), Law in a therapeutic key: Developments in therapeutic jurisprudence (Carolina Academic Press, 1996), 694.

[29] Michael D Pepson, 'Therapeutic jurisprudence in philosophical perspective' (2008) 2 Journal of Law, Philosophy and Culture 239, 245.

[30] Astrid Birgden, 'Therapeutic jurisprudence and offender rights: A normative stance is required' (2009) 78 Revista Juridica Universidad de Puerto Rico 43; Brookbanks, above n 15.

[31] Tali Gal and David B Wexler, 'Synergizing therapeutic jurisprudence and positive criminology' in Natti Ronel and Dana Segev (eds), Positive criminology (Routledge, 2015), 89.

[32] Ibid , 88.

[33] Ibid , 94.

[34] Winick, above n 13, 193-194.

[35] Wexler, above n 12.

[36] Birgden, above n 30, 44.

[37] Ibid , 57.

[38] Ken Kress, 'Therapeutic jurisprudence and the resolution of value conflicts: What we can realistically expect, in practice, from theory' (1999) 17 Behavioral Sciences & the Law 555.

[39] Bruce J Winick, 'Therapeutic jurisprudence and victims of crime' in Edna Erez, Michael Kilchling and Jo-Anne Wemmers (eds), Therapeutic jurisprudence and victim participation in justice: International perspectives (Carolina Academic Press, 2011), 3-4, emphasis added.

[40] Wexler, above n 3, 43.

[41] Wexler 2008, above n 1, 20.

[42] Winick and Wexler, above n 7, 485.

[43] Winick, above n 13, 203.

[44] See especially, Dawn Moore, 'The benevolent watch: Therapeutic surveillance in drug treatment court' (2011) 15 Theoretical Criminology 255; Leslie Paik, Discretionary justice: Looking inside a juvenile drug court (Rutgers University Press, 2011).

[45] Lorana Bartels, 'Looking at Hawaii's Opportunity with Probation Enforcement (HOPE) program through a therapeutic jurisprudence lens' (2016) 16 QUT Law Review 30, 33; Astrid Birgden, 'Applying therapeutic jurisprudence principles in sentencing: Courts, corrections and beyond' Sentencing: Principles, Perspectives & Possibilities (2006), 2; Birgden, above n 30, 57; Freiberg, above n 20, 10; Michael S King, 'Problem-solving court judging, therapeutic jurisprudence and transformational leadership' (2008) 17 Journal of Judicial Administration 155, 155; Jordan Tutton, 'Therapeutic jurisprudence in sentencing remarks: An exploratory study' (2017) 42 Alternative Law Journal 162, 162; David B Wexler and Michael S King, 'Promoting societal and juridical receptivity to rehabilitation: The role of therapeutic jurisprudence' in Caroline C Cooper, Anna McG Chisman and Antonio Lomba Maurandi (eds), Drug treatment courts: An international response for drug dependent offenders (American University School of Public Affairs: Inter-American Drug Abuse Control Commission (CICAD), Secretariat for Multidimensional Security of the Organization of American States (OAS), 2013), 21-22; Bruce J Winick, 'Problem solving courts: Therapeutic jurisprudence in practice' in Richard L Weiner and Eve M Brank (eds), Problem solving courts: Social science and legal perspectives (Springer, 2013), 220.

[46] After locating multiple references to TJ principles in the literature but not being able to find a clear account of them, I posted this question to TJ proponents/practitioners on the international Therapeutic Jurisprudence listserv: "does anyone know of any source which explicitly states what therapeutic jurisprudence principles are?" I received several replies, all of them varied. Some proponents seemed hesitant to propose or define TJ principles, resorting back to the idea of it being merely a lens to think about the law in a different way. This response, however, ignores the empirical and practical forms of life that TJ has come to take. Others referred to Amy Ronner's "three Vs"-voice, validation and voluntariness but this suggestion seems too narrow given the multifarious contexts in which TJ has been applied to date: see Amy D Ronner, 'Songs of validation, voice, and voluntary participation: Therapeutic jurisprudence, Miranda and juveniles' (2002) 71 University of Cincinnati Law Review 89. The diversity of responses received reinforced the absence of any agreed-upon principles.

[47] Wexler 2014, above n 8, 1.

[48] Winick and Wexler, above n 7, 480; Winick, above n 45, 220.

[49] The relationship between TJ and Indigenous courts in Australia remains contested. Some TJ scholars suggest that because these courts focus on "wellbeing" (broadly defined) they are examples of applied TJ: see Kate Auty, 'We teach all hearts to break - but can we mend them? Therapeutic jurisprudence and Aboriginal sentencing courts' (2006) eLaw Journal 101; Australasian Institute of Judicial Administration (2020) Indigenous issues and Indigenous sentencing courts. Available at: https://aija.org.au/research/resources/indigenous-issues-and-indigenous-sentencing-courts/ . But not all would accept this characterisation. There is a political intent in Indigenous courts that is not typical of TJ: see Elena Marchetti and Kathleen Daly, 'Indigenous sentencing courts: Towards a theoretical and jurisprudential model' (2007) 29 Sydney Law Review 419. Recently, scholars have debated the relationship between HOPE programs and TJ: see Lacey Schaefer and Mary Beriman, 'Problem-solving courts in Australia: A review of problems and solutions' (2019) 14 Victims and Offenders 344. Cf Lorana Bartels, 'HOPE-ful bottles: Examining the potential for Hawaii's opportunity probation with enforcement (HOPE) to help mainstream therapeutic jurisprudence' (2019) 63 International Journal of Law and Psychiatry 26.

[50] Pat O'Malley, 'Volatile and contradictory punishment' (1999) 3 Theoretical Criminology 175.

[51] John Pratt, Penal populism (Routledge, 2007), 142.

[52] Consequently, it is not possible to establish whether the goals and objectives of TJ are antithetical to those of punitive retributivism, for instance. One only need look at the strong following TJ has in the US to see that TJ and punitive retributivism can coexist. Of course, this uptake might be symptomatic of a desire to try and counter or offset the anti-therapeutic effects of a system that boasts the highest incarceration rate of any Western jurisdiction, but as will be explored further later, it is also true that TJ approaches are not entirely devoid of a retributivist ethos. The issue of whether TJ is able to accomplish its aims in a punitive retributive context cannot be properly addressed until the philosophical deficits outlined in this section have been attended to.

[53] Another approach to the study of law as a 'social force' that falls under the umbrella of its empirical dimension involves casting the TJ lens on existing legal arrangements and analysing therapeutic and anti-therapeutic effects of those arrangements and/or proposing reforms to promote the former and reduce the latter. This work raises questions to which the answers are 'empirical and normative' (see David B Wexler, 'Therapeutic Jurisprudence and the criminal courts' (1993) 35 William and Mary Law Review 279, 280). However, because this exercise is mostly analytical and not empirical, it will not be examined here. In any event, Wexler argues that when reading this work, the 'illustrations' provided should not be assessed for their 'empirical accuracy' and contends that 'the illustrations themselves typically call for further empirical research': Wexler, above n 12, 21.

[54] Winick, above n 13, 185.

[55] David B Wexler, 'Therapeutic jurisprudence: An overview' (2000) 17 Thomas M Cooley Law Review 125, 130.

[56] Wexler, above n 2, 99.

[57] But see, Lauren B Cattaneo and Lisa A Goodman, 'Through the lens of therapeutic jurisprudence: The relationship between empowerment in the court system and well-being for intimate partner violence victims' (2010) 25 Journal of Interpersonal Violence 481; Nathalie Des Rosiers, Bruce Feldthusen and Oleana A R Hankivsky, 'Legal compensation for sexual violence: Therapeutic consequences and consequences for the judicial system' (1998) 4 Psychology, Public Policy, and Law 433; Kent Madsen and Ulf Holmberg, 'Interviewees' psychological well-being in investigative interviews: A therapeutic jurisprudential approach' (2015) 22 Psychiatry, Psychology and Law 60; Dennis Saccuzzo, 'How should the police respond to domestic violence: A therapeutic jurisprudence analysis of mandatory arrest' (1999) 39 Santa Clara Law Review 765.

[58] Samuel J Brakel, 'Searching for the therapy in therapeutic jurisprudence' (2007) 33 New England Journal on Criminal and Civil Confinement 455; Petrila, above n 28; Roderick and Krumholtz, above n 21; Slobogin, above n 21.

[59] Wexler, above n 22, 221.

[60] David B Wexler and Bruce J Winick, 'Patients, professionals, and the path of therapeutic jurisprudence: A response to Petrila' in David B Wexler and Bruce J Winick (eds), Law in a therapeutic key: Developments in therapeutic jurisprudence (Carolina Academic Press, 1996), 709.

[61] Winick, above n 13, 195.

[62] Wexler, above n 2, 95.

[63] Bruce J Winick and David B Wexler, 'The use of therapeutic jurisprudence in law school clinical education: Transforming the criminal law clinic' (2006) 13 Clinical Law Review 605, 628-629.

[64] Winick, above n 13, 195.

[65] But see, Karen Freeman, New South Wales drug court evaluation: Health, well-being and participant satisfaction (NSW Bureau of Crime Statistics and Research, 2002); Mia Green and Michael Rempel, 'Beyond crime and drug use: Do adult drug courts produce other psychosocial benefits?' (2012) 42 Journal of Drug Issues 156; Adele Harrell, John Roman and Emily Sack, Drug court services for female offenders, 1996-1999: Evaluation of the Brooklyn treatment court (Urban Institute Justice Policy Centre, 2001).

[66] Roderick and Krumholtz, above n 21, 209.

[67] Ibid .

[68] Peter Raynor and Gwen Robinson, Rehabilitation, crime and justice (Macmillan, 2005), 2.

[69] Roderick and Krumholtz, above n 21, 209.

[70] Wexler, above n 16, 33.

[71] A few studies have nonetheless attempted to test TJ "theory" in drug courts (see Senjo and Leip, above n 15; Scott Senjo and Leslie A Leip, 'Testing and developing theory in drug court: A four-part logit model to predict program completion' (2001) 12 Criminal Justice Policy Review 66) and mental health courts (see Allison Redlich and Woojae Han, 'Examining the links between therapeutic jurisprudence and mental health court completion' (2014) 38 Law & Human Behavior 109).

[72] Winick and Wexler, above n 7, 484.

[73] Ibid 480.

[74] In the literature, references are made to principles of drug courts that are deemed to be consistent with a TJ approach but there are no explicit references to TJ principles in and of themselves.

[75] Wexler, above n 53, 130.

[76] David B Wexler, 'Adding color to the white paper: Time for a robust reciprocal relationship between procedural justice and therapeutic jurisprudence' (2008) 44 Court Review 78; Bruce J Winick and David B Wexler, Judging in a therapeutic key: Therapeutic jurisprudence and the courts (Carolina Academic Press, 2003).

[77] David B Wexler, 'Robes and rehabilitation: How judges can help offenders "make good" (2001) 38 Court Review 18.

[78] Astrid Birgden, 'Therapeutic jurisprudence and "good lives": a rehabilitation framework for corrections' (2002) 37 Australian Psychologist 180; Astrid Birgden, 'Therapeutic jurisprudence and responsivity: Finding the will and the way in offender rehabilitation' (2004) 10 Psychology, Crime and Law 283.

[79] Gal and Wexler, above n 31; David B Wexler, 'Getting and giving: What therapeutic jurisprudence can get from and give to positive criminology' (2013) 6 Phoenix Law Review 907.

[80] Michael S King, 'Therapeutic jurisprudence and criminal law practice: A judicial perspective' (2007) 31 Criminal Law Journal 12; Michael S King, 'Should problem-solving courts be solution-focused courts?' (2011) 80 Revista Juridica Universidad de Puerto Rico 1005; Wexler, above n 2; Wexler and King, above n 45; Winick, above n 45.

[81] Wexler, above n 75, 19.

[82] King, Freiberg, Batagol et al., above n 20, 29.

[83] Wexler, above n 2, 103.

[84] Therapeutic Jurisprudence in the Mainstream (no date) What works - evidence based practice. Available at: https://mainstreamtj.wordpress.com/resources/what-works-evidence-based-practice/

[85] See, for example, Chris Cunneen, Eileen Baldry, David Brown et al., Hyperincarceration and penal culture: The revival of the prison (Ashgate, 2013); Kelly Hannah-Moffat, 'Gridlock or mutability: Reconsidering "gender" and risk assessment' (2009) 8 Criminology & Public Policy 209; Kelly Hannah-Moffat and Paula Maurutto, 'Re-contextualizing pre-sentence reports: Risk and race' (2010) 12 Punishment & Society 262; Kristy Holtfreter and Rhonda Cupp, 'Gender and risk assessment: The empirical status of the LSI-R for women' (2007) 23 Journal of Contemporary Criminal Justice 363.

[86] To be clear, this should not be read as a criticism of TJ. I am not suggesting that it always overtly focuses on "what works" evidence. There are many examples demonstrating that TJ proponents do look at other forms of evidence even with regard to offender rehabilitation (e.g. desistance narratives). But the point to stress here is that these other forms of research do not fall within the ambit of "what works".

[87] David Garland, The culture of control: Crime and social order in contemporary society (University of Chicago Press, 2001).

[88] Wexler and King, above n 45, 35.

[89] Winick, above n 45, 219.

[90] Ibid, 231.

[91] Ibid, 229-230.

[92] Ibid , 231.

[93] This reinforces some of the empirical shortcomings of TJ identified in the previous section.

[94] Winick, above n 45, 222.

[95] David B Wexler, 'Therapeutic jurisprudence and the rehabilitative role of the criminal defence lawyer' (2005) 17 St. Thomas Law Review 743, 752-753; Winick and Wexler, above n 7, 482; Winick, above n 45, 221.

[96] Winick, above n 45, 217.

[97] Bruce J Winick, 'Therapeutic jurisprudence and problem solving courts' (2003) 30 Fordham Urban Law Journal 1055, 1067.

[98] Winick, above n 45, 225.

[99] Peggy F Hora, William G Schma and John T A Rosenthal, 'Therapeutic jurisprudence and the drug court movement' (1999) 74 Notre Dame Law Review 439, 475-476.

[100] Timothy Casey, 'When good intentions are not enough: Problem-solving courts and the impending crisis of legitimacy' (2004) 57 SMU Law Review 1459, 1479.

[101] Wexler and King, above n 45, 33-34.

[102] See, for example, Pamela K Lattimore, Doris Layton MacKenzie, Gary Zajac et al., 'Outcome findings from the HOPE demonstration field experiment: Is swift, certain, and fair an effective supervision strategy?' (2016) 15 Criminology & Public Policy 1103; Daniel J O'Connell, John J Brent, Christy A Visher, 'Decide your time: A randomized trial of a drug testing and graduated sanctions program for probationers' (2016) 15 Criminology & Public Policy 1073. Cf Zachary Hamilton, Christopher C Campbell, Jacqueline van Wormer et al., 'Impact of swift and certain sanctions: Evaluation of Washington State's policy for offenders on community supervision' (2016) 15 Criminology & Public Policy 1009.

[103] Though there are a number of studies that demonstrate the negative impact of imprisonment on wellbeing: see generally, Craig Haney, Reforming punishment: Psychological limits to the pains of imprisonment (American Psychological Association, 2006).

[104] Astrid Birgden and Luke Grant, 'Establishing a compulsory drug treatment prison: Therapeutic policy, principles, and practices in addressing offender rights and rehabilitation' (2010) 33 International Journal of Law and Psychiatry 341, 341.

[105] Ibid , 344-345.

[106] Ibid , 348.

[107] See, for example, Joula Dekker, Kate O'Brien and Nadine Smith, An evaluation of the Compulsory Drug Treatment Program (CDTP) (NSW Bureau of Crime Statistics and Research, 2010). This is the only known publicly available evaluation of the CDTCC. It reports some 'promising' findings with regard to improvements in participant health and wellbeing but there were several limitations to the study. In particular, the authors note that due to the varied length of time between program entry and when the baseline measurement was undertaken it is possible that for some participants, 'any improvements in health and wellbeing may have become manifest by the time the baseline interviews were conducted': 21.

[108] As noted above, restorative justice has made more headway in this respect. While there remains considerable disagreement among RJ proponents with respect to the relationship between RJ and existing criminal justice thinking and practices, TJ does not boast the same level of theoretical engagement in its scholarship.

[109] See, for example, Anna Kawalek, 'A tool for measuring therapeutic jurisprudence values during empirical research' (2020) 71 Journal of Law and Psychiatry, who has developed an empirically validated tool for measuring the therapeutic quality of judicial officer dynamics in problem-solving courts. Advancements made in the operationalisation of wellbeing from other fields may also have something to offer: see generally, Frank Martela and Kennon M Sheldon, 'Clarifying the concept of well-being: Psychological need satisfaction as the common core connecting eudaimonic and subjective well-being' (2019) 23 Review of General Psychology 458.

[110] Of course, in the absence of normative and conceptual definitions that would offer some consistency in application, researchers can (and have) devised their own. The problem with this is that: a) they are not consistent, resulting in reliability and validity issues (but see Kawalek above); and b) as noted earlier, important concepts like healing are yet to be empirically examined.

[111] One may wish to claim that even if the internal shortcomings identified are attended to, TJ cannot realise its full potential in practical terms unless there is a parallel reformation of the retributive criminal justice system. There are two points I want to make in response to such a claim. Firstly, it is not evident that TJ and retributivism are incompatible. Not only has the growth of TJ applications in Western criminal justice systems occurred alongside rising imprisonment but, as noted earlier, the TJ approach to lawbreaking in and of itself is not entirely devoid of a retributivist ethos (intentionally or otherwise). Whether this compatibility is desirable is a different question. This leads me to my second point. It is difficult to know what a fuller realisation of TJ in practical terms would look like because the relation between TJ and criminal justice thinking and practices and what a TJ approach offers remains unclear. These are internal problems that TJ proponents have failed to address. As presently conceptualised and applied, TJ does not appear to profoundly challenge orthodox thinking and practices per se. Instead it looks for ways to lessen the anti-therapeutic impacts of the criminal law and to capitalise on opportunities to reform or apply it more therapeutically. Even with respect to mainstreaming TJ, the somewhat ambiguous aim is not to challenge the status quo but rather to recast TJ 'principles' as the new status quo.