Bruce J. Winick and David B. Wexler. Judging in a Therapeutic Key: Therapeutic Jurisprudence and the Courts. Durham, North Carolina: Carolina Academic Press, 2003. 331 pages. $45.00.
In an era marked by the proliferation of specialized courts, Winick and Wexler’s treatise on the use of therapeutic jurisprudence in the judicial system is a timely and useful contribution to the literature. In their edited work, Judging in a Therapeutic Key, Winick and Wexler underscore the importance of attending to the therapeutic and antitherapeutic impact judges, attorneys, mental health professionals, and members of law enforcement have on the criminal defendants, victims, and families with whom they interact. Judging in a Therapeutic Key provides a comprehensive overview of problem-solving courts by relying heavily on anecdotal information from existing drug courts, domestic violence courts, teen courts, mental health courts, juvenile dependency drug courts, reentry courts, and unified family courts. The text contains rich, detailed descriptions of the day-to-day operations of these courts, as well as, statistical findings regarding effectiveness. Examples of principles of therapeutic jurisprudence at work in these problem-solving courts are woven throughout the text along with discussions stressing the need for incorporating aspects of procedural justice and restorative justice into case processing. In stressing the need to attend to principles of therapeutic jurisprudence in the processing of criminal and civil cases, the authors spend a great deal of time concentrating on the role judges play in cultivating positive change in the criminal defendants and victims they encounter. In fact, the judgedefendant interaction is the focus of considerable discussion throughout the text with many of the excerpts providing suggestions for how members of the judiciary can incorporate principles of therapeutic jurisprudence and procedural justice in their courtrooms. While the authors consistently refer to judges as key agents of therapeutic jurisprudence, little time is spent providing rationales for the premise that judges have a unique advantage, compared to significant others in defendants’ lives, in effecting therapeutic change. The authors by no means ignore the contributions that others make in the rehabilitation and personal growth of defendants. In fact, they claim that principles of therapeutic jurisprudence can, and should, be utilized by all professionals involved in a defendant’s case, including, but not limited to, mental health providers, substance abuse treatment providers, members of law enforcement, prosecuting attorneys, and defense attorneys. Despite this all-inclusive view of the application of therapeutic jurisprudence, the * Professor Jennie J. Long is a member of the faculty in the Department of Behavioral Sciences at Drury University. 541 CRIMINAL LAW BULLETIN authors appear to view judges’ communications and interactions with defendants as particularly salient when it comes to producing therapeutic outcomes, such as reductions in recidivism and substance abuse and improvements in self-esteem and personal growth. A more detailed discussion delineating the rationales for assuming that judges are as, or more, important than others in effecting positive transformations in defendants, victims, and families would help make the case that members of the judiciary are key to the therapeutic jurisprudence model of justice. The individuals appearing before the judiciary in problem-solving courts are grappling with an array of problems including, criminality, substance abuse, delinquency, and dysfunctional families. For the most part, the authors appear to view these issues from a micro-level perspective confining discussion of these issues to the realm of the criminal justice system and focusing on the individual and/or the family as the nuclei for change. Thus, the authors propose reforms be made to the traditional court system to help effect change in individuals and families, but stop short of advocating that particular societal changes be made to address the problems of criminality, substance abuse, and domestic violence. While the authors briefly mention the need to examine criminal laws and policies with an eye towards their potential therapeutic or antitherapeutic impact, they fall short of identifying particular laws that should be enacted or repealed (e.g. drug laws) in order to enhance the therapeutic, as opposed to the antitherapeutic, value of the judicial system. While at times Winick and Wexler advocate overhauling the current judicial system and adopting principles of therapeutic jurisprudence in the processing of all criminal cases, even with these changes the criminal justice system would remain the clearinghouse for many societal problems. The argument might be made that it would be better to address problems of addiction and family dysfunction before these problems manifest themselves as criminal and/or civil cases. Winick and Wexler address this point at some level by suggesting that problem-solving courts serve as primary prevention for the second generation of court clients (the children of the parents who participate in such courts) even if only serving as a form of secondary prevention for the clients themselves. Despite the potential preventative effects the courts may have on individuals, some may prefer that the judicial system was out of the business of organizing and providing social services to individuals and families. In problem-solving courts, the mobilization of such services occurs after the manifestation of a criminal or civil case. The possibility and desirability of identifying and attending to the problems of substance abuse and domestic violence absent a criminal or civil case is the focus of little discussion in the text. Notwithstanding the intrusive nature of problem-solving courts in the lives of individuals, Judging in a Therapeutic Key provides encouraging results from such courts and, at the very least, moves the discussion of specialized courts beyond mere outcome-centered discussions of recidivism and cost effectiveness to issues of procedural justice and the therapeutic power of the law and the judiciary. It is evident in reading the text that the editors are strong proponents of problem-solving courts, and they provide convincing statistical findings, as 542 BOOK REVIEW well as, anecdotal support for their position. What is lacking is a more thorough critique of such courts. While concerns regarding issues of net widening, the potential weakening of defendants’ due process protections, the role of defense attorneys in problem-solving courts, and the lack of judicial oversight in some drugs courts are mentioned, few of these weaknesses are addressed in any in-depth manner. Regarding critiques of specialized courts, the authors make a point of advising program skeptics to assess the strengths and weaknesses of problem-solving courts in relation to existing court structures rather than to some ideal. While the authors’ point is well taken, why not do both? Just because problem-solving courts may be improvements over traditional court processes, an assertion that still needs empirical testing even though preliminary findings are promising, should we be content with a better, yet still potentially flawed, system? The editors’ admonition to evaluators to critique specialized courts in relation to traditional court structures seems reasonable. Similarly, the authors’ inference, that it would be unwise to dismantle or discontinue the establishment of specialized courts merely because they do not live up to their hype, even though they are an improvement over traditional courts, is well taken. However, more attention could be focused on the need for those involved in the development, management, and evaluation of specialized courts to continually strive to address any limitations or concerns these courts present to the just and fair processing of cases. Judging in a Therapeutic Key is a valuable contribution to the literature on problem-solving/specialized courts. The editors provide a new lens for viewing such courts and offer suggestions for how practitioners developing, or currently working, in these courts can optimize the therapeutic potential of courtroom experiences and interpe
rsonal communications for criminal defendants, victims, and families. The text is useful for social service providers, members of the legal profession, and judges who wish to implement principles of therapeutic jurisprudence, restorative justice, and/or procedural justice in their interactions with clients. Additionally, the work would be suitable for library collections servicing law students and graduate programs in criminology, criminal justice, sociology, psychology, and political science. While specialized courts may not be panaceas for addressing the problems of criminality, substance abuse, and dysfunctional families, Winick and Wexler argue that these courts hold some promise for stimulating positive change in the lives of many defendants and victims. By adopting principles of therapeutic jurisprudence, Winick and Wexler suggest that problem-solving courts can be more than mere band-aids on an ailing judicial system. Instead, with proven success, these courts may serve as examples to traditional courtrooms across the country that attending to principles of therapeutic jurisprudence can transform the judicial process in ways that positively impact victims, defendants, and litigants. While such goals are undeniably lofty, Judging in a Therapeutic Key sets the stage for fruitful debate concerning the judiciary’s therapeutic or antitherapeutic impact on individuals who find themselves in one of this country’s multitude of problem-solving courts. 543
