Why Therapeutic Jurisprudence?

Posted: October 7, 2013 in Corrections, Courts, Law, Policing
Tags: , , ,

I read an excellent blog post over the weekend by Rick Horowitz, “I’m a Prosecutor. This is What We Do,” that lays out a clear argument against the mindless, overzealous enforcement of the law by some prosecutors. His point was that, too often, thoughtless actions on the part of the State’s attorney can result in serious injustices that not only do real harm to individuals, but also erode public confidence in the system’s ability to functional at all.

Court

It’s not just prosecutors, though, who can act like “energizer bunnies,” to use Horowitz’s term for those who too aggressively pursue a barely articulated goal of “justice.” It’s also the police officer who oversteps his authority and injures or kills someone without just cause. It’s the judge who hides behind his robe when handing out sentences he knows are disproportionate to the crimes committed. It’s the correctional officer who uses excessive force just because he can.

We (meaning criminal justice practitioners) can all too easily forget that the justice system is operated by human beings for the purpose of protecting and serving other human beings. Inherent in that is the idea that our humanity should shine through, no matter the situation. Undoubtedly, this is messy work with few clear answers. Pretending, however, that the answer is to simply maximize the vengeful impacts of our limited role as a way to bring predictability and structure to the chaos is wrong-headed.

It will only serve to steer us further away from the goal of seeking justice. On this point, Horowitz concluded:

We, the People — not “the People” as mouthed by prosecutors and judges in the show trials that make up 95% of courthouse trials these days, but we, the actual People — need to wake up. When prosecutors forget that “not merely to convict” is intended to be a brake on vengeance, a reminder that true justice requires looking at the bigger picture, to see how we can make the world a better place, it is not merely the convict who suffers. Our whole society is dragged down by this attitude.

None of this is to say that police officers, prosecutors, judges, or correctional workers are inherently bad. They’re not. They’re essential, in fact, to maintaining public safety. At the same time, though, we need to look more deeply at what we’re doing as a whole, not just at what goes on within the self-enforced vacuum of our own little silos.  We need to look beyond the arbitrary boundaries we’ve established and work together to improve society overall through our actions.

So, how do we do that?

One place to start is to give more attention to integrated approaches to justice, such as Therapeutic Jurisprudence, a term coined by legal scholar, David Wexler, in the 1980s to describe what he referred to as:

a perspective that regards the law as a social force that produces behaviors and consequences. Sometimes these consequences fall within the realm of what we call therapeutic; other times antitherapeutic consequences are produced. Therapeutic jurisprudence wants us to be aware of this and wants us to see whether the law can be made or applied in a more therapeutic way so long as other values, such as justice and due process, can be fully respected.

While this is most typically applied to the court room, there’s no reason that it needs to be limited to any one part of the justice system. What if all elements of the system focused on increasing therapeutic effects while reducing harm to the maximum extent possible? What if we all operated not from a retributive perspective, but from a rehabilitative one as well?

Would that be more just and more likely to instill confidence in the system as a whole?

What are your thoughts? Leave a comment below and share your perspective.

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