Volume 4, Issue 2, February 2003
ISSN 1096-4886 http://www.westerncriminology.org/Western_Criminology_Review.htm
These six articles represent a diverse cross-section of the type of scholarship that is currently developing in therapeutic jurisprudence (see http://www.therapeuticjurisprudence.org for a full bibliography). Begun by law professors David Wexler and Bruce
Winick (also co-editors of this special issue) over the last 15 years,
'TJ' as it is known, has its roots in mental health law. It emerged out
of the rising frustration of a legal dialog that focused solely on the
rights of mental health patients involved in legal proceedings, leaving
out important larger considerations of their therapeutic needs. Could
how mental health patients themselves experienced the law as a process
impact their emotional and psychological well-being? Would consideration
of their emotional and psychological well-being improve the law's functioning
when dealing with issues such as conservatorship, involuntary commitment,
and treatment regimes? At its simplest, TJ asks how the law itself can
be more therapeutic, without displacing due process considerations, to
improve the functioning of law and contribute to its development.
From this mental health focus, TJ has grown to encompass a broad base of therapeutic concerns in both civil and criminal law (see Wexler & Winick's Law in a Therapeutic Key: Developments in Therapeutic Jurisprudence for the range of areas in TJ). But TJ is not limited to the view of victims and offenders. Scholarship from the perspective of professionals involved in the justice process, particularly judges and lawyers, is also emerging. Dennis Stolle, David Wexler, and Bruce Winick's 2000 book, Practicing Therapeutic Jurisprudence: Law as a Helping Profession, showed how law practice could be revolutionized through application of a therapeutic jurisprudence approach to lawyering. Winick and Wexler's soon-to-be published book, Judging in a Therapeutic Key: Therapeutic Jurisprudence and the Courts, carries the TJ paradigm to the judging process, showing how judges in the newly emerging problem-solving courts can play their role more effectively as the therapeutic agents these judges have become. This scholarship focuses not only on the professional interactions with offenders and victims but on issues such as job satisfaction and burn-out. The emergent TJ literature, then, considers the individual-level as well as the system-level factors in the legal process and includes multiple perspectives. In addition, TJ is both a theory that guides practice as well as a theory that guides research. It urges the integration of techniques learned in social science, such as behavioral contracting, motivational interviewing, and relapse prevention techniques, into the legal process, as a means toward a more therapeutic outcome.
It will be seen that TJ is very much in the "talking" or
analytical stages of its scholarship, as several of the authors in this
special issue mention. Empirical support is the next necessary step
toward TJ's growth and development. Unlike many theories, TJ specifically
sets out readily definable and measurable constructs that can be incorporated
into research that can further its development and perhaps ultimately
'prove' or 'disprove' therapeutic jurisprudence's value as an instrument
of law reform. TJ's definition (a theory that emphasizes how legal rules,
legal actors, and legal procedures can contribute to therapeutic outcomes)
sets up a tangible, discernable structure to carry out in empirical
research. While the definition of "therapeutic" is not prescribed
and must be determined by individual researchers, there still remains
a sufficient boundary from which to determine a measurable impact. Contrast
this with the literature on deterrence, which even after a century of
modern scholarship, continues to struggle with measurable outcomes and
lacks sufficient field research to lend it evidence-based credibility.
The therapeutic jurisprudence scholarship in this issue is exciting for its ability to cross traditionally impenetrable boundaries -- internationally, inter-disciplinarily, across practice and research, and with an emphasis that includes both those being acted upon in law (offenders and victims) and the legal actors themselves (judges, lawyers, therapists). Included in the work here are authors from 3 continents (Australia, North America, and Europe); across multiple disciplines (psychology, law, the behavioral sciences, justice studies and social work); involved in both civil and criminal law. The authors are academicians as well as practitioners. The client populations considered include immigrant women who have been battered, sex offenders, and convicted offenders reintegrating into society. On the practitioner side, issues of interest to lawyers handling depositions and therapists working with sexual offenders are covered. We would like to thank all six of our contributors for their outstanding work.
Shadd Maruna and Thomas LeBel start this issue off by using TJ combined with psychological theory as a foundation for a strengths-based approach to offender re-entry courts. They discuss the "helper principle" as a possible key in desistance from crime, and explain how re-entry courts can focus on "dispensing reintegration" and "active responsibility" so that ex-offenders can rejoin society by going through a process of making amends without posing a threat to the public.
James McGuire also uses TJ to look at criminal law. He first comments on the vigorous debate between punishment and rehabilitation. He then links the role that legal actors can play in the rehabilitative process and focuses in on four areas: the therapeutic alliance, motivational engagement, treatment adherence, and relapse prevention principles.
The issue then turns to specific techniques for lawyers, with David Carson's article on how lawyers ask witnesses questions. He applies a TJ framework to first suggest that we consider the impact on witnesses and how they are questioned by lawyers. Next, he makes a series of recommendations on how lawyers can question witnesses in a way that is both fair to witnesses and effective at producing evidence.
Dennis P. Stolle and Mark D. Stuann's article takes TJ into the realm of civil justice and depositions. Also geared specifically toward lawyer techniques, the authors discuss the concomitant stress and anxiety experienced by witnesses in high-stakes civil and quasi-criminal depositions. Using TJ as a framework, they advocate a process that would reduce this stress while enhancing the deposition process.
Bill Glaser's article then takes us back to the original domain of TJ —mental health law. He applies a TJ analysis to ethical dilemmas for clinicians working with sex offenders in a legal environment. In his final analysis, he recommends three key principles for clinicians: procedural fairness, that treatment be guided by both the seriousness of the crime as well as the offender's need for treatment, and that "infringements on an offender's legal rights must be minimized."
Edna Erez and Carolyn Hartley then utilize a TJ analysis to give voice to a victim population seldom heard from — battered immigrant women. They discuss the "anti-therapeutic effects" faced by these women when they become involved in the criminal justice system. The authors then suggest that a TJ analysis focus on two areas as a foundation for policy and practice recommendations: "understanding the context of immigration" and practicing a "culturally competent therapeutic response."
The TJ scholarship broadens the circle of participants in the discussion of how our criminal and civil justice systems operate and what worthwhile outcomes ought to be. It invites multiple perspectives of varied professionals on an international basis to contribute to policy and practice questions in law (for available scholarship in Spanish, go to the "Articles in Spanish" link on the TJ website noted above). Moreover, these six articles emphasize how TJ urges consideration of traditionally unheard victims and offenders and how they might be impacted at both the process and outcome levels as a means towards the development and functioning of law. It also explores something of increasing interest to legal practitioners themselves — how they are impacted as professionals by the legal process. The Western Society of Criminology is an organization that has a thirty-year history of emphasizing researcher-practitioner dialog in its membership and at its annual conferences. We are fortunate to have been invited to submit this special issue to such an appropriate venue. We invite you to participate in the ongoing TJ dialog and scholarship.
A TJ Email Listserve is available. To subscribe, send a blank email to: firstname.lastname@example.org.
We would like to thank all those who reviewed manuscripts for this issue including: Mary Berkheiser; Astrid Birgden; Kim Connolly; Zelda Harris; Carolyn Hartley; Michael King; John LaFond; Pauline Pagliocca; Michael Perlin; David Prescott; John Price; Bill Schma; Leonore Simon; Dennis Stolle; and Tony Ward.Carrie J. Petrucci, David B. Wexler, and Bruce J. Winick
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