Mental health law has had an interesting last 40 years. Born of the reform movements of the 1960s and fueled by a civil rights and critical spirit, it has moved through the policy cycle that begins with great vigor and youthful exuberance and ends in an old age of cynicism and regret. Deinstitutionalization, the primary goal of the youthful period, no longer looks so good as an alternative to the reliance on institutions that was the hallmark of the pre-reform era. Reformers, throughout the life span of this movement, have focused on the commitment process to state hospitals as the key to making change. Mental health legal reformers have continued, over the life span of this policy, to tinker with the commitment process as a way to improve services and at the same time protect the rights of the mentally ill person. Enter Bruce Winick and his new book, CIVIL COMMITMENT: A THERAPEUTIC JURISPRUDENCE MODEL. Winick hopes to provide the Viagra that will energize an old, tired perspective. Whether he convinces readers will depend on the politics and probably the age of the reader, but he surely has written a book that should be read by everyone interested in mental health law.

Winick writes from that old liberal, theoretical perspective: he wants to convince the reader that his therapeutic jurisprudence model is the key to moving beyond the quagmire that currently exists in mental health law. That commitment to commitment is what makes this book an important read. Winick keeps the faith that civil commitment is the key to improved services for the seriously mentally ill. Liberal reformers have been making this argument for 50 years, and for 50 years much reform energy has gone into changing how this process works. He argues for a synthesis of the civil rights perspective with a therapeutic perspective. Winick wants judges, prosecutors and defense attorneys to change how they think about practicing. If these lawyers can keep both the therapeutic and legal interests to the mentally ill person in mind, they can improve the commitment process making it a healing and humane experience. He is resurrecting the “best interest” of the client approach.

The Winick approach rests on a set of liberal assumptions that are, at the very least, now suspect. Winick assumes that professionals can be guided by altruism which will lead to better outcomes for the mentally ill, that the courts provide the levers for improving how institutions operate, that the public will go along with the humane measured approach he suggests, and that the commitment process is still the key to better outcomes even though state hospitals are no longer [*21] the central service they once were. These assumptions may all be correct, or some or all of them may be wrong. But they go untested throughout the book. Surely we should be suspicious of another set of reforms that depend on the motivations and intentions of professional strangers. The national experience with deinstitutionalization should give us pause to continue down the same road that makes the non-system of community care the linchpin of reform. Why should state legislators support this approach? What training should lawyers receive, and who should pay for it? What evidence do we have that the mentally ill will be any better off under these new arrangements? Winick is so sure of his approach and so eager to promote it that these questions are not asked, much less answered. Why would it be in someone’s interest to implement the model he proposes? I was reminded of the moral entrepreneurs of another century, pushing a reform they believed in deeply but not seeing where the reform could go wrong.

We can see the same problem in the educational community where liberal reformers were also convinced that desegregation was the key to improving schools for the poor. Forty years of desegregation practice has only convinced them that we have not tried hard enough to make it work, not that it may not have been the right solution to the problem. Deinstitutionalization and desegregation were born of the same thinking and spirit some 50 years ago. Neither has fared nearly as well as its advocates had hoped; neither garners much support from the public.

Should we still be focusing on the commitment process if we want to improve outcomes for the mentally ill served by public dollars? It is not clear, to put it generously, that the commitment process is the pivotal decision affecting the lives of the mentally ill. Fifty years ago the commitment process was the beginning of a career as a mental patient. It changed people’s lives if they were committed. Often the commitment was a life sentence or, for the old, a death sentence. Often custody passed as treatment. Today, commitments seem more a consequence than a cause of the problems of treating the mentally ill. This, of course, was not true 50 years ago when commitment played a much bigger role in the careers of the mentally ill. Winick maintains his commitment to a set of assumptions that I believe are no longer warranted. Nevertheless, his approach deserves serious consideration for there is a whole generation of mental health advocates who believe as Winick does, and there will continue to be a push from this group to continue down that long road to a commitment process that does a better job of balancing the needs of the patient with the rights of the citizen. There is something to be said for keeping the faith over almost 40 years of trying to improve mental health services through legal action. The problem is that times and policies change, indeed the emphasis on legal challenges through class actions has seen limited success in changing how these systems work. The outrages of the institutional era have been replaced by procedures and processes that seem more the problem than the solution to a more conservative public. Most states have put protections for the mentally ill in place that seem cumbersome and awkward. To keep trying to get it right about civil commitment when it has not [*22] proven the key to improving services, could be leading us in the wrong direction.

The book has an odd tone for the social scientist. Winick is clearly making a normative argument. He wants to argue for what ought to be. He weaves in an empirical dimension using studies that illustrate the effectiveness of therapeutic jurisprudence. But the line between the normative and empirical dimensions is not drawn clearly. The book reads like a brief, pushing a line of argument. I would have liked to see more attention to the current situation in key states so we can see what the reality is and then think through how these reforms would affect that situation. The treatment system is guided today by federal reimbursement policy and the complex interplay between state service providers and the private sector. The notion that legal reform leads to organizational change has clearly been challenged as a flawed conceptual framework not only in mental health but education, foster care, and other human services. Winick and others cling to the notion that a change in law will produce an improvement in services, but the history of reform suggests that things are not that simple. Winick certainly makes the problem of change easy: change the law and keep changing it until those forces of darkness come around. It also keeps the agent of change safely locked up in the legal establishment, looking for just that right turn of a judicial phrase that will bring those judges and prosecutors in line with the goals of the reformers.

Winick joins a long line of reformers, from Dorothea Dix on down who single-mindedly push a way of changing practice. Much of the damage that has been done to the mentally ill has come from those who desire to help. Andrew Scull’s (2005) new book is just the latest reminder that we should be careful in accepting the well-intentioned expert as the friend of the mentally ill. To rely on the kindness or, if you will, therapeutic sensitivity of lawyers to improve the lives of the mentally ill seems a path loaded with trouble.

Winick still believes that changes in law will produce the intended changes in the behavior of those affected by the law. He is so convinced that a good normative framework will win the day that he does not ask about the factors that make it more likely that framework will be adopted and implemented successfully. Where are the pressures to make therapeutic jurisprudence work? In whose interest is it to make therapeutic jurisprudence work? The questions are not asked, much less answered.

Be that as it may, Winick represents a way of thinking that has dominated the conversation about reform in mental health for a very long time. The “therapeutic jurisprudence model” deserves serious consideration, perhaps more as the reason liberal reforms seem so out of touch with current realities and less as a way to make the commitment process work.

REFERENCE:

Scull, Andrew. 2005. A TRAGIC TALE OF MEGALOMANIA AND MODERN MEDICINE. New Haven: Yale University Press.

© Copyright 2006 by the author, Dan A. Lewis.

As a result, the debate regarding civil commitment has reached a conceptual and intellectual impasse, with proponents of more medical or more legalistic approaches rehearsing arguments that vary little from those first raised forty years ago. Bruce Winick, in his excellent new book Civil Commitment: A Therapeutic Jurisprudence Model, offers a potential path away from this impasse.

Winick, a professor at the University of Miami School of Law, is one of the nation’s leading mental health law scholars. With David Wexler, he is co-founder of “therapeutic jurisprudence” which Winick defines as “an interdisciplinary approach to legal scholarship and law reform that sees the law itself as a therapeutic agent…Therapeutic jurisprudence calls for the study of [the law’s impact] with the tools of the behavioral sciences so that we can better understand law and how it applies and can reshape it to minimize its anti-therapeutic effects and maximize its therapeutic potential.” (p. 6).

Therapeutic jurisprudence has gained increasing influence over the last decade: For example, it is the philosophic foundation for the hundreds of drug courts and mental health courts that have emerged since the early 1990s. In this book, Winick uses therapeutic jurisprudence in a generally successful effort to determine which aspects of civil commitment law and practice have therapeutic or anti-therapeutic consequences. He does this in eleven concise but thorough chapters, by applying social sciences research into coercion, capacity, and choice to each element of civil commitment law. The result is a balanced, non-ideological reframing of the topic. For example, Winick is respectful of individual liberty, arguing that research shows that treatment adherence is most likely when the individual’s participation is voluntary and informed. He also asserts that the legal process required before a person is committed should be honored in fact (when it is too often simply ignored) because if a person is given voice, “patients will respond more effectively to hospitalization…” (p. 148). At the same time, he proposes relaxing legal standards when their rigid application might impede access to care. For example, he believes that individuals who voluntarily seek care should be considered competent absent very compelling evidence to the contrary; in his view, to apply a competency standard too rigidly could result in people being denied care, or being civilly committed rather than voluntarily admitted to care, with anti-therapeutic consequences.

Anyone involved with civil commitment will find this book useful and thought-provoking, particularly given continuing controversy regarding civil commitment and the use of coercion. It is becoming increasingly apparent that individuals in community care are subject to myriad types of leverage, including coercion, all designed to gain treatment adherence.[FN 1] Winick insists that one of the most important questions we can ask about legal rules and legal processes is whether they have a therapeutic or anti-therapeutic impact. In doing so, he illustrates how the debate about civil commitment and coercion might be reframed in a way that permits proponents of both the legalistic and the medical models of commitment to begin talking to each other rather than past each other.

FN1. John Monahan, Allison D. Redlich, Jeffrey Swanson, Pamela Clark Robbins, Paul S. Appelbaum, John Petrila, Henry J. Steadman, Marvin Swartz, Beth Angell, and Dale E. McNiel. Use of Leverage to Improve Adherence to Psychiatric Treatment in the Community
Psychiatr Serv, Jan 2005; 56: 37 – 44.

Bruce Winick kicks Therapeutuc Jurisprudence up several notches in this remarkable new book. With uncommon erudition and in precise, elegant prose, he demonstrates how coercion to mental health treatment — in both its institutional and community forms — can be seen more clearly through the lens of a theory that takes seriously the therapeutic potential of law.” John Monahan , Ph.D., Doherty Professor of Law, University of Virginia

Bruce Winick ’s work on therapeutic jurisprudence has long been a beacon for anyone involved or interested in mental health law. This newest effort on his part will be another crucial reference point for mental health professionals, scholars, lawyers, judges and consumers of psychiatric treatment. Winick masterfully weaves together legal doctrine and empirical research into a practical guide for dealing with a wide range of issues concerning civil commitment, including the use of coercion by the state, the doctor-patient relationship, the definition of competency to make treatment decisions, and outpatient interventions. Winick deftly demonstrates that, through the prism of therapeutic jurisprudence, civil commitment can be viewed as a cooperative health-enhancing process, rather than a zero-sum battle between autonomy principles and treatment goals. — Christopher Slobogin, Stephen C. O’Connell Professor of Law, University of Florida Fredric G. Levin College of Law

Bruce Winick ‘s new volume on civil commitment is the most important book-length work on that topic that has been published in my 35 years as a lawyer. It examines virtually every question raised by the commitment process, and rigorously analyzes each issue through the lens of therapeutic jurisprudence. By way of one example, his chapter on international human rights law will immediately restructure how we think about the relationship between that body of law and all of mental disability law. This book is, to be concise, superb. — Michael L. Perlin, Professor of Law, New York Law School

Bruce Winick has done it again. ‘Civil Commitment: A Therapeutic Jurisprudence Model’ uses TJ comprehensively to challenge and provoke those who wish to do mental health law business as usual. It is required reading for mental health lawyers, advocates, and anyone interested in the intersection of mental health, law and social policy. — Stephen J. Morse, J.D., Ph.D., Ferdinand Wakeman Hubbell Professor of Law & Professor of Psychology and Law in Psychiatry, University of Pennsylvania

Why be concerned about involuntary civil commitment in an era when it is difficult to get approval to admit even very disturbed psychiatric patients? In the first few pages of this important book, Winick makes the point that many patients continue to confront the reality of involuntary commitment. Then, using clear and graceful prose, he launches into an encyclopedic analysis of the historical, legal, clinical, and ethical issues surrounding involuntary commitment. Combining legal scholarship with clinical insights, Winick establishes a roster of challenging questions that provides a valuable guide for the theoretical and empirical work of those interested in mental health law and the treatment of the mentally ill. — J. Richard Ciccone, M.D., Professor of Psychiatry, Director, Psychiatry and Law Program, University of Rochester School of Medicine

This is where Professors’ Bruce Winick and David Wexler’s book “Judging in a Therapeutic Key” proves so helpful. The book is divided into two parts. The first is a compilation of articles, written by judges and other practitioners, describing a variety of problem-solving courts. The book then provides an explanation of the TJ concept and how judges can utilize the principles of TJ, regardless of whether they are presiding in a specialized court. The second part of the book is also a compilation of articles, written by experts in the field and provides a blueprint for utilizing Therapeutic Jurisprudence in the courtroom.

There is much to commend this book to a wide audience. It does far more than provide an academic underpinning for TJ; it provides practical advice for the practitioner. I particularly appreciated the section entitled “Interpersonal Skills and the Psychology of Procedural Justice.” One portion written by Michael Clark M.S.W. gives helpful suggestions to judges who wish to employ TJ techniques in their courtrooms. He discusses four factors that research has shown is responsible for motivating behavioural change and suggests how judges can use these factors to empower the offender.

Equally relevant for judges is a section entitled “Sparking Motivation and Reducing Perceived Coercion.” This section includes a very insightful article by Professor Winick on “The Judge’s Role in Encouraging Motivation for Change.” He explains in detail how judges can act as “change agents” including the dos and don’ts of interacting with offenders. He also unties the tricky knot of whether TJ is coercive and in so doing answers critics who contend that all treatment must be voluntary.

Although judges will find much to interest them, the book is also well worth reading if you are not presiding in court. Addiction counsellors, defence counsel and crown attorneys attached to problem-solving courts will be interested in sections entitled “Facilitating Motivation to Change,” and “Enhancing Compliance.” These and other articles in Part II, provides practitioners with practical suggestions to assist in changing behaviour.

While there is much to applaud in the book, there is one unfortunate shortcoming. This is principally an American book, edited by American academics about U.S. courts. As such it suffers from a lack of international context. There are after all problem-solving courts in many other jurisdictions, including Canada. While these courts are noted in the Reference section of Part I, there is no acknowledgement of their role in the development of therapeutic judging. This is unfortunate because examining differences in approach might have been helpful to the editors in their analysis of problem-solving courts and even be of some interest to their American readers.

On balance however, this book is an important contribution to the jurisprudence on Therapeutic Jurisprudence and problem-solving courts and will appeal to anyone who works in this area.

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

Bruce J. Winick and John Q La Fond have managed to get a remarkable group of A-list scholars to coalesce around the science, law, policy, and practice of dealing with sx offenders. This is the one absolutely indispensable book on what the public now calls sexual “predators.” It is destined to have an enormous influence on the development of the field. John Monahan, PhD, Doherty Professor of Law, Psychology, and Psychiatry, University of Virginia.

Bruce J. Winick and John Q. La Fond have recruited an international cast of experts who nicely balance protection of the public against potential harm from sexual predator laws. Threats to civil liberties, anti-therapeutic influences, high financial cost, and promising alternatives to prolonged incarceration are thoughtfully explored. This outstanding book will be required reading for anyone interested in psychology and the criminal law, particularly those involved in the assessment, treatment, case management, and prosecution or defense of sex offenders. Howard Barbaree, Professor and Clinical Director, Law and Mental Health Programs, Department of Psychiatry, University of Toronto, and Centre for Addiction and Mental Health.

The editors have produced an encyclopedia on the topic of sex offenders. The contributors offer a thorough exposition of the multiple questions sexual predation raises, exploring research on sexual offense recidivism, psychiatric prediction of future sexual predatory behavior, and various legal responses and costs. This book belongs on the shelf of every professional who deals with sexual offenders in psychiatric consulting rooms, making policy recommendations in the think tanks, and passing laws in legislative chambers. Alexander E. Obolsky, MD, Medical Director, Health and Law Resource, Inc., Chicago.

INTRODUCTION
“Therapeutic jurisprudence” represents a shift in perspective on the role of law and courts in our society.
Judging in a Therapeutic Key is a collection of thought-provoking essays that illustrates this shift, often through the various authors’ descriptions of the roles of judges and litigants in our legal system. These authors–many of whom are judges–do not promote the traditional view of the judge as just a neutral arbiter of cases who is uninvolved in the conflict before her, or as only an adjudicator of historical facts who chooses between two conflicting positions to determine a winner and a loser, or as simply the final decision-maker who renders judgment in one case and moves on to the next case without looking back.
Instead, they depict the judge as a “coach,” [1] a “member of the treatment team,” [2] a “case manager” or a “risk manager,” [3] and a “leading actor in the therapeutic drama” of the courtroom.[4] Judges are described as “listeners, translators, educators, and if possible, facilitators,” [5] and above all, as versatile “problem-solvers” [6] who craft solutions to the underlying social and behavioral problems that gave rise to the cases before her.

New kinds of specialized problem-solving courts that reflect the principles of therapeutic jurisprudence have been springing up all over the country during the past 15 years. In these courtrooms, the judge may assume “the role of confessor, task master, cheerleader, and mentor” [7] to the criminal offender. The offender is often referred to as a “client,” [8] and the judge-offender relationship is described as a “rich therapeutic opportunity” [9] to reduce recidivism and “make a positive difference in people’s lives before it’s too late.” [10] Offenders are encouraged to confront their “cognitive distortions,”[11] and victims might be the beneficiaries of “symbolic reparation.” [12] These are courtrooms where judges practice an “ethic of care,” [13] where treating defendants with respect and dignity is as
important as knowing the law, [14] and where “behavioral contracts” [15] and “graduation
ceremonies” [16] may be more the order of the day than sentencing and incarceration. Judges in these new courts are encouraged to place less emphasis on efficiency in case processing and more emphasis on “repentance, education, reform, catharsis, and healing.” [17]

What’s going on here? A transformation of the judicial role has been steadily taking place across the country in trial-level courts that specialize in certain kinds of cases or problems, such as adult and juvenile drug treatment courts, mental health courts, and domestic violence courts. Key characteristics common to these and other such “problem-solving courts” are “active judicial involvement and the explicit use of judicial authority to motivate individuals to accept needed services and to monitor their compliance and progress.” [18] Despite their unconventional vocabulary, these well-respected judicial and academic writers are not pushing political correctness or touchy-feely reforms. Rather, they are advocating a concerted national effort to combine common sense with the lessons of the behavioral sciences to transform our courts into opportunities to ensure public safety, to aid victims in
reconciling with their abusers and coping with their injuries, to re-cast criminal offenders as actively contributing members of society, and to increase public trust of and respect for our judicial system.

THERAPEUTIC JURISPRUDENCE EXPLAINED

What, then, is therapeutic jurisprudence? Therapeutic jurisprudence (TJ) is the interdisciplinary study of law as a social force that has considerable impact on people’s emotional lives and psychological well-being. [19] Its fundamental premise is that a person’s involvement with the legal system can have both positive (therapeutic) and negative (anti-therapeutic) consequences for him or her, even independent of the win/lose outcome of the case. In other words, like medications, legal rules and legal procedures can have unintended adverse side effects. [20]

TJ scholars analyze these therapeutic and anti-therapeutic consequences and ask to what extent the law, lawyers, and judges should attempt to maximize the potential for therapeutic outcomes. [21] TJ suggests that people’s encounters with the legal system, like their encounters with the health care system, ideally should leave them better off, not worse off, than they were before the encounter. [22] In other words, like medicine, law should strive first to “do no harm.” [23]

Therapeutic jurisprudence was founded in the late 1980s and early 1990s through the work of the author-editors of this book, law professors Bruce Winick and David Wexler, [24] who were doing interdisciplinary research in mental health law. Examining such issues as competency to consent to treatment, the commitment process, and the insanity defense, these scholars looked at the therapeutic implications of mental health laws. [25] In particular, they focused on how legal rules, legal procedures, and legal actors could contribute to the psychological dysfunction of patients and defendants. For example, laws restricting confidentiality could negatively impact a mentally ill person’s willingness to fully disclose important information to a therapist, or the doctrine of incompetence to stand trial could either prolong a criminal defendant’s mental illness or encourage unnecessary treatment. [26]

Over the past decade, therapeutic jurisprudence has attracted the attention of a widely diverse group of scholars and practioners who have extended its principles into such fields as criminal law, family law, juvenile law, tort law, contract law, disability law, and health law. [27] To get a quick glimpse of the enormous impact that TJ has had on legal scholarship and practice, the reader may visit the TJ website for a lengthy, cumulative bibliography of videos, books, book chapters, monographs, and articles on the application of TJ in many different contexts. [28] Rarely does the academic work of law scholars have such a clear-cut impact in shaping the research agendas of a broad range of legal academics. Rarer
still are the times when such legal scholarship positively impacts the working lives of judges and practicing lawyers. As these essays make abundantly clear, therapeutic jurisprudence has come of age as a legal discipline in its own right, ready to be further tested carefully and strategically within our judicial system.

HOW THE NEW PROBLEM-SOLVING COURTS WORK

Judging in a Therapeutic Key describes how these new problem-solving courts work and also sets out the underlying rationale for creating them. The book is divided into two parts. Part I, titled “The New Judicial Approaches,” consists largely of short newspaper stories that provide a highly readable and engaging introduction to the workings of these new courts. These journalistic accounts develop a basic theme of problem-solving courts, which is to end the “revolving-door” effect that returns ex-offenders back to criminal courts. The new courts partly grew out of frustration that judges were “processing cases like a vegetable factory. Instead of cans of peas, you’ve got cases. You just move ‘em, move ‘em, move
‘em …. I feel like I work for McJustice: we sure aren’t good for you, but we are fast.” [29] With rising criminal caseloads, judges were frustrated that their courtrooms were turning into “plea bargain mills”; attorneys were frustrated by the sense they were working on an “assembly line”; and the public’s confidence in the criminal justice system was declining as rates of criminal activity were rising. [30]

The first news story succinctly sets the stage by introducing the concept of revolving-door justice through Nando, a young man from the Bronx who, within a few hours of his release from an eight-month prison term for selling crack, had been offered drugs on the street and an opportunity to return to his old job dealing drugs. In releasing Nando back to the community with little more than subway fare, the traditional judicial system had not addressed the underlying social or psychological problems that might have fostered his drug-related activities in the first place and that might again prove too strong an influence for him to withstand in the future. [31]

Subsequent news accounts describe the new approaches that various courts across the country are takingto break the cycle of re-involvement by individuals like Nando with the criminal justice system. These courts attempt to intervene in the life of criminal offenders by addressing their underlying problems, such as mental illness, poverty, substance abuse, or the lack of a home, job, or education. For example, various drug treatment courts in Florida (where they first got their start in Miami in 1989 through the efforts of Janet Reno, then Dade County’s district attorney), Pennsylvania, California, and elsewhere employ a variety of strategies to break the cycle of addiction and recidivism by developing drug treatment plans for offenders. These treatment plans are tailored to the needs of the individual offender, and could include, among other things, writing an essay on what recovery means to the offender, participating in group therapy, job training, completing a GED program, or referral to a residential treatment center. [32]
Similarly, juvenile drug treatment courts in North Dakota make young offenders “earn their freedom” by taking random drug screens, attending drug counseling sessions, participating in community service, and reporting regularly on their progress to the judge. If they stay clean and offense-free for two years, they may have their juvenile records expunged. [33] In Texas, over 80 so-called Teen Courts provide an alternative forum to the regular juvenile courts. Young offenders can plead guilty and opt for a sentencing “trial” by other teens who play the roles of prosecutor, defense counsel, and the jurors who determine the sentence, which can include apologies, community service, the writing of research papers, and service as jurors in future Teen Court sessions.[34]

Other news stories recount the successes of specialized domestic violence courts in Utah and Idaho in breaking the cycle of abuse by violent partners or parents and in aiding the recovery of their victims.[35] The first specialized mental health court was established in 1997 in Florida to stop the revolving door for mentally ill persons who are often repeatedly arrested and sent to jail (which may worsen their health) instead of being offered treatment to address their underlying mental health problems. Since then, about 20 other such courts have been established and a dozen others have been proposed in various cities nationwide to divert mentally ill offenders into treatment programs. [36]

APPLYING THERAPEUTIC JURISPRUDENCE PRINCIPLES IN THE NEW COURTS

Part II of the book, titled “From Description to Prescription: Emerging Principles and Proposals,” consists of essays by Wexler and Winick as well as judges, academic scholars, and others, exploring how therapeutic jurisprudence principles might provide theoretical justification for these new judicial approaches. These essays are often short excerpts from previously published articles, which are grouped according to theme in different sections of Part II. Winick and Wexler begin each section with a clear introductory overview that explains the themes. Their skillful editing make these excerpts enjoyable to read and helps readers grasp the various authors’ key points more easily. The author-editors also take
care to explain that these specialized treatment courts are “related to therapeutic jurisprudence, but they are not identical with the concept.” [37] Rather, they are “merely ‘vectors’ moving in a common direction,” [38] with such courts serving as a kind of laboratory for the application of TJ principles. Part II also provides tools and techniques, drawn from empirical research in psychology and the behavioral sciences, that judges can employ to achieve therapeutic outcomes in their courts. For example, one essay describes how “relationship factors”–that is, whether there is empathy, acceptance, and warmth in a client-counselor relationship–are among the most important contributors to any therapy’s effecting a successful change in behavior. [39] Another essay hypothesizes how aspects
within the judge-defendant interaction–such as demeanor, speech, body language, and listening skill–might create a “shared respect process” that could contribute to positive offender behavior. [40]

In this book, the court is often portrayed as the critical first step in the process of therapy and behavioral change; [41] hence, the authors advocate for judicial education in psychology, the science of human behavior. [42] Two essays on the civil commitment process, for example, discuss how the commitment hearing itself can have therapeutic implications for both the patient and his or her caregivers and can increase the likelihood that any subsequent hospitalization and treatment will be successful. [43]

Another pair of essays explores how permitting a nolo contendere plea, in which the offender is allowed to claim innocence while accepting punishment, might have anti-therapeutic consequences for both the offender and the victim. Sex offenders in particular may suffer from cognitive distortions, “denial and minimization” that they have done anything wrong. Therapeutically speaking, however, “[a]dmitting one’s wrong is the first step toward moving past it …. Admissions are so central to therapy that most
sex-offender programs refuse to admit offenders who deny any sexual conduct.” [44] A judge who accepts a nolo contendere plea may thereby allow the offender to remain in denial and to resist treatment while one who, instead, accepts a guilty plea and requires admission of guilt under oath could enable the offender to begin the process of “cognitive resturcturing” which can lead to successful recovery. [45]

Several essays examine how judges can facilitate an offender’s motivation to change by, among other things, taking advantage of the offender’s “crisis” at the outset of court proceedings as a “teachable moment or therapeutic opportunity”: instilling self-confidence that change is possible, respecting autonomy and avoiding paternalism and coercion, and engaging in reflective listening that helps offenders both to acknowledge their problems and to buy into solutions that they had an active part in shaping. [46] Wexler also shows how techniques used by health care professionals to increase patient compliance with medical treatment might be applied in the judicial context to ensure compliance by insanity acquittees with court-ordered conditions for their release (such as medical or psychiatric
treatment regimens). [47] Winick separately elaborates on how a behavioral psychology technique called “behavioral contracting” can increase an individual’s motivation to comply with a treatment or rehabilitative program when the individual has been involved in advance in setting the goals, rewards for success, and punishments for non-compliance. [48]

Are judges being encouraged to go beyond the realistic limits of their expertise by applying research in psychology, therapy, and other behavioral sciences in their courtrooms? While this concern is surely legitimate, one essay is particularly noteworthy in attempting to dispel it. The author, Michael Clark, a Michigan social worker and consultant to drug treatment courts, discusses studies that suggest that experience and training make little difference in achieving effective therapeutic outcomes. In one study, for example, experienced therapists were no more helpful than untrained college professors, and in another study, novice graduate students were more effective than trained professionals at couples therapy. [49]

Evidently, effective therapy depends less on a particular therapeutic approach and more
on a therapist’s ability to promote certain factors common to all effective therapy, such as: employing the client as the fundamental “engine” of change, taking into account each client’s personality, skills, and circumstances, establishing a trusting relationship with the client, and instilling hope and positive expectation in the client that therapy will work. [50] Clark concludes that “the ‘good news’ of this common factors research is that therapeutic work is not just the domain of treatment professionals” and that judges, lawyers, and other court-related staff can use these techniques to induce positive behavior change. [51]

DO THESE NEW APPROACHES WORK?

In these problem-solving courts, judges are viewed as active “therapeutic agents” [FN52] who attempt to foster therapeutic outcomes for the offenders who come before them–whether by ending the drug addict’s addiction, checking the violent propensities of a child or spouse abuser, or forestalling the “public acts of bizarreness” [53] that formerly had resulted in repetitive criminal arrests of the mentally ill. These are high aspirations, but do these courts actually achieve their goal of “healing”?[54]

To date, success has been gauged largely in anecdotal reports. Throughout this book, the need for more empirical research is freely and repeatedly acknowledged. [55] There is some empirical evidence that these new approaches have reduced recidivism. [56] Further, judges and participants have reported increased satisfaction with these new approaches. [57] Some studies, however, indicate that in practice these courts may not consistently implement the therapeutic principles espoused in these essays but, instead, continue traditional approaches that provide negative sanctions more often than positive feedback.[58]

Nevertheless, without waiting for all the empirical evidence to come in, some legislatures, courts, and other legal authorities have recently begun to “codify” TJ principles in their statutes, court procedures, and recommendations for legal system reform. For example, the Florida statute on drug treatment courts provides that such programs “shall include therapeutic jurisprudence principles.” [59] Commentary on Maryland’s Family Divisions Performance Standard 5.1 acknowledges the “therapeutic potential of court intervention” in the lives of families and children. [60] Expressly referencing therapeutic jurisprudence, judges have set forth key principles and components of effective domestic violence and
mental health courts. [61] One state court has declared in a “vision statement” that it would be guided by the principles of therapeutic jurisprudence. [62] Impressively, in 2000, the Conference of Chief Justices and the Conference of State Court Administrators adopted a joint resolution in support of problem-solving courts and therapeutic jurisprudence principles. [63]

CRITICS OF THERAPEUTIC JURISPRUDENCE AND THE NEW COURTS

So, what’s not to love? Despite this enthusiastic reception in many legal circles, these problem-solving courts and TJ’s role in them are not without critics. [64] As acknowledged in these essays, questions are often raised about the preservation of individual rights in these new courts. Is the defendant’s choice to opt out of the traditional courts and to participate in these new judicial programs after a guilty plea truly voluntary and not coerced? Do the lawyers who represent these defendants remain their zealous advocates? Do the judges sacrifice impartiality as they become more closely involved in the defendants’
progress in therapy and in life generally? Do problem-solving courts cross the line into the executive branch of government when they so actively manage the defendants’ behavior? [65]

The authors do not duck such questions. Rather, they confront them squarely and make suggestions for addressing these potential problems. Winick and Wexler note the procedural due process concerns in the very first pages of the book and urge judges in problem-solving courts to heed the Supreme Court’s decision in In re Gault, which “recognized the importance of not dropping the due process guard simply because of governmental ‘good intentions,’ such as a goal of rehabilitation rather than punishment.”
[66] In several essays, the therapeutic benefits of procedural due process are offered alongside of the historic justifications of fairness to encourage judges to take care to ensure procedural justice. Showing respect for the offenders, allowing them a real voice in the proceedings, and evidencing genuine concern for their well-being increases litigants’ sense of fair treatment. Furthermore, these judicial behaviors can encourage compliance with treatment regimens and adherence to other conduct requirements of continued participation. [67]

Thus, for both philosophical and utilitarian reasons, the authors caution against cutting procedural corners in these new courts. [68] Winick, for example, acknowledges the potential for a judge in a specialized domestic court to become cynical over time about those accused of violence and to over-identify with the victims of violence. He suggests that requesting a transfer to a court of general jurisdiction may become appropriate at that point. [FN69]

TJ proponents do not claim that therapeutic jurisprudence should displace other perspectives on the law or that therapeutic effects should trump other values or considerations in our legal system, such as individual autonomy, constitutional rights, community safety, or economic efficiency. [FN70] Their intentions are more modest: to encourage more empirical research to identify the therapeutic consequences of legal rules and legal procedures and more scholarly reflection on whether such rules and procedures should be changed, taking into account those consequences as well as other important
social values.

THE ANALOGY TO HEALTH CARE
As the name implies, therapeutic jurisprudence borrows heavily from the experiences in health-related fields, and health care analogies appear throughout the book. At one point, courts are described as functioning as “trauma centers,” serving families in crisis. [71] Several essays promote the concept of “risk management” in the context of releasing potentially dangerous offenders back to the community.[72] TJ’s emphasis on interdisciplinary teamwork among court staff, social workers, and lawyers and on taking a holistic, coordinated approach to criminal offenders finds parallels in current interdisciplinary approaches to patient care and to public health in general. Indeed, the authors even
suggest that TJ and the new problem-solving courts represent a public health approach to the problems of juvenile delinquency, drug addiction, domestic violence, and mental illness. [73]

There is a striking similarity as well between many of TJ’s core principles and the lessons coming out of the patient safety movement in health care. Both perspectives urge taking a systemic approach to problems in their respective arenas, be they medical errors or criminal behavior. Just as health care providers do a root cause analysis after a medical mishap has occurred in order to prevent similar accidents from occurring in the future, so do judges in problem-solving courts applying TJ principles seek to understand the root causes of an offender’s behavior, to resolve the underlying psychological conditions or social circumstances that led to that behavior, and thereby to prevent future criminal behavior. [74]

Conclusion
Are judges being encouraged to stray too far from their traditional roles in these new problem-solving courts? Some may think so. An alternative view is that this new book and the movement it promotes challenge judges to act like decent human beings who genuinely care about the citizens who appear before them, about their victims, about their families, and about their communities. Judges wield enormous power–both overtly and in subtle psychological ways–and TJ encourages them to use the power and prestige of their office responsibly and in the best interests of the parties as well as the public.

The authors assembled in this worthy volume believe strongly in the law’s potential to serve as a “healing agent” [75] and seek to cast judges and lawyers in the roles of peacemakers and creative problem-solvers. [76] Their vision deserves our serious consideration.

Footnotes

[*]. Professor of Law, Georgia State University College of Law, Atlanta, Georgia. Address
correspondence to Professor Scott at P.O. Box 4037, Atlanta, Georgia 30302-4037, or via e-mail at
charity@gsu.edu.
[1]. BRUCE J. WINICK & DAVID B. WEXLER, JUDGING IN A THERAPEUTIC KEY:
THERAPEUTIC JURISPRUDENCE AND THE COURTS 6 (2003).
[2]. Id. at 4.
[3]. Bruce J. Winick, Domestic Violence Court Judges as Risk Managers, in WINICK & WEXLER,
supra note 1, at 201, 208.
[4]. WINICK & WEXLER, supra note 1, at 5.
[5]. David B. Wexler, How Appellate Courts Can Use Therapeutic Jurisprudence, in WINICK &
WEXLER, supra note 1, at 313-14.
[6]. William F. Dressel, Foreword, in WINICK & WEXLER, supra note 1, at xiii; Greg Berman &
John Feinblatt, Problem-Solving Courts: A Brief Primer, in WINICK & WEXLER, supra note 1, at 73;
William G. Schma, Judging for the New Millennium, in WINICK & WEXLER, supra note 1, at 87, 91.
[7]. Peggy F. Hora et al., Monitoring Treatment Provision and Progress, in WINICK & WEXLER,
supra note 1, at 299.
[8]. Randal B. Fritzler, 10 Key Components of a Criminal Mental Health Court, in WINICK &
WEXLER, supra note 1, at 118; Barbara A. Babb & Jeffrey A. Kuhn, Maryland’s Family Divisions
Performance Standard 5.1: A Therapeutic, Holistic, Ecological Approach to Family Law Decision
Making, in WINICK & WEXLER, supra note 1, at 124, 129.
[9]. Bruce J. Winick, The Case for a Specialized Domestic Violence Court, in WINICK &
WEXLER, supra note 1, at 286, 293.
[10]. Babb & Kuhn, supra note 8, at 124.
[11]. David B. Wexler, Sex Offenders and the Plea Process, in WINICK & WEXLER, supra note 1,
at 165, 165-66.
[12]. Thomas J. Scheff, Working with Shame and Anger in Community Conferencing, in WINICK &
WEXLER, supra note 1, at 231, 235.
[13]. WINICK & WEXLER, supra note 1, at 9, 130; Roger K. Warren, Public Trust and Procedural
Justice, in WINICK & WEXLER, supra note 1, at 132, 135; Schma, supra note 6, at 91.
[14]. Warren, supra note 13, at 132-36.
[15]. Bruce J. Winick, How Judges Can Use Behavioral Contracting, in WINICK & WEXLER, supra
note 1, at 227.
[16]. David B. Wexler, Robes and Rehabilitation, in WINICK & WEXLER, supra note 1, at 249,
250-51.
[17]. Stephanos Bibas. Using Plea Procedures to Combat Denial and Minimization, in WINICK &
WEXLER, supra note 1, at 169, 173-74.
[18]. WINICK & WEXLER, supra note 1, at 5.
[19]. The concept of law as a “therapeutic agent” has been developed by Wexler and Winick in
several previous collections of essays. For more readings and a deeper understanding of TJ, see
generally PRACTICING THERAPEUTIC JURISPRUDENCE: LAW AS A HELPING PROFESSION
(Dennis P. Stolle, David B. Wexler & Bruce J., Winick eds. 2000) [hereinafter PRACTICING TJ];
LAW IN A THERAPEUTIC KEY: DEVELOPMENTS IN THERAPEUTIC JURISPRUDENCE
(David B. Wexler & Bruce J. Winick eds. 1996) [hereinafter LAW IN A THERAPEUTIC KEY];
DAVID B. WEXLER & BRUCE J. WINICK, ESSAYS IN THERAPEUTIC JURISPRUDENCE (1991)
[hereinafter ESSAYS]; DAVID B. WEXLER, THERAPEUTIC JURISPRUDENCE: THE LAW AS A
THERAPEUTIC AGENT (1990) [hereinafter THERAPEUTIC AGENT].
[20]. Bruce J. Winick, The Side Effects of Incompetency Labelling and the Implications for Mental
Health Law, in LAW IN A THERAPUTIC KEY, supra note 19, at 17.
[21]. PRACTICING TJ, supra note 19, at xv.
[22]. Edward A. Dauer, A Therapeutic Jurisprudence Perspective on Legal Responses to Medical
Error, 24 J. LEGAL MED. 37, 41 (2003).
[23]. THERAPEUTIC AGENT, supra note 19, at 5; David B. Wexler, An Introduction to
Therapeutic Jurisprudence, in ESSAYS, supra note 19, at 19-20.
[24]. Bruce Winick is Professor of Law at the University of Miami. David Wexler is Professor of
Law and of Psychology at the University of Arizona and is Professor of Law and Director of the
International Network on Therapeutic Jurisprudence at the University of Puerto Rico.
[25]. See generally ESSAYS, supra note 19; THERAPEUTIC AGENT, supra note 19.
[26]. Wexler, supra note 23, at 19-21.
[27]. LAW IN A THERAPEUTIC KEY, supra note 19 (table of contents lists an array of legal fields
in which TJ concepts have been examined).
[28]. See http://www.law.arizona.edu/depts/upr-intj/. If you get hooked, you can even join the
international listserv on therapeutic jurisprudence or attend upcoming TJ conferences that are announced
on this website.
[29]. Berman & Feinblatt, supra note 6, at 77.
[30]. Id. at 76-78.
[31]. Alan Feuer, Out of Jail, into Temptation: A Day in a Life, in WINICK & WEXLER, supra note
1, at 13.
[32]. Gloria Hayes, Breaking the Cycle of Addiction: Officials Seek to Spread the Word on Drug
Treatment Courts, in WINICK & WEXLER, supra note 1, at 21.
[33]. Xiao Zhang, “You Earn Your Freedom”: Juvenile Drug Court Keeps Youths on Track, in
WINICK & WEXLER, supra note 1, at 35.
[34]. Julie Elliot, Youths Face a Jury of Their Peers: Teen Court Offers a Chance to Clear Records of
Minor Offenses, in WINICK & WEXLER, supra note 1, at 49; Amanda Alexander, Teen Court Never
Loses Hope, in WINICK & WEXLER, supra note 1, at 52.
[35]. Ray Rivera, Court Cracks Down on Domestic Violence, in WINICK & WEXLER, supra note 1,
at 55.
[36]. Richard A. Marini, Mental Health Courts Focus on Treatment; Criminals Often Overlooked in
Traditional System Are Sentenced to Hospital Care, in WINICK & WEXLER, supra note 1, at 59.
[37]. Bruce J. Winick & David B. Wexler, Drug Treatment Court: Therapeutic Jurisprudence
Applied, in WINICK & WEXLER, supra note 1, at 106.
[38]. Id. at 109.
[39]. Michael D. Clark, A Change-Focused Approach for Judges, in WINICK & WEXLER, supra
note 1, at 137, 140-42.
[40]. Carrie J. Petrucci, The Judge-Defendant Interaction: Toward a Shared Respect Process, in
WINICK & WEXLER, supra note 1, at 148.
[41]. See, e.g., WINICK & WEXLER, supra note 1, at 178, 298.
[42]. Id. at 7-8; Bruce J. Winick, The Therapeutic Value of the Civil Commitment Hearing, in
WINICK & WEXLER, supra note 1, at 156.
[43]. Winick, supra note 42, at 156-58; Charles J. Kennedy, Judicial Behavior and the Civil
Commitment Petitioner, in WINICK & WEXLER, supra note 1, at 158.
[44]. Bibas, supra note 17, at 169-70.
[45]. Id. at 169; Wexler, supra note 11, at 165.
[46]. Peggy F. Hora et al., The Importance of Timing, in WINICK & WEXLER, supra note 1, at 178;
Michael D. Clark, Ascertaining and Encouraging Change, in WINICK & WEXLER, supra note 1, at
179; Bruce J. Winick, The Judge’s Role in Encouraging Motivation to Change, in WINICK &
WEXLER, supra note 1, at 181.
[47]. David B. Wexler, Health Care Compliance Principles and the Judiciary, in WINICK &
WEXLER, supra note 1, at 213. “Insanity acquittees” is the author’s term for persons found not guilty by
reason of insanity.
[48]. Winick, supra note 15, at 227.
[49]. Clark, supra note 39, at 146-47.
[50]. Id. at 137. Clark cites studies suggesting that, among over 200 therapeutic schools of thought,
none has been shown to be decisively superior to any other.
[51]. Id. at 147.
[52]. See WINICK & WEXLER, supra note 1, at 8, 105.
[53]. Marini, supra note 36, at 60.
[54]. Schma, supra note 6, at 87-88, 91.
[55]. WINICK & WEXLER, supra note 1, at 27-29, 216, 225, 291, 293.
[56]. See. e.g., Berman & Feinblatt, supra note 6, at 74 (study of Dade County drug court revealed
fewer re-arrests than comparable non-drug-court offenders); id. at 80 (study of 48 drug courts by
Columbia University’s National Center on Addiction and Substance Abuse found drug use and
recidivism by offenders were substantially reduced during drug court participation). Hayes, supra note
32, at 24; Steven Belenko, Research on Drug Courts: A Critical Review, 2001 Update, in WINICK &
WEXLER, supra note 1, at 27-28; Zhang, supra note 35, at 37; Rivera, supra note 34, at 56; Marini,
supra note 36, at 61.
[57]. Marini, supra note 35, at 62; Warren, supra note 13, at 135-36; Wexler, supra note 16, at
253-54; Peggy F. Hora et al., Promoting Vicarious Learning Through Case Calendaring, in WINICK &
WEXLER, supra note 1, at 300.
[58]. Shadd Maruna & Thomas P. Le Bel, Welcome Home?: Examining the “Reentry Court”
Concept from a Strengths-Based Perspective, in WINICK & WEXLER, supra note 1, at 255, 277.
[59]. Fla. Stat. § 397.334 (2002).
[60]. Babb & Kuhn, supra note 8, at 125.
[61]. Randal B. Fritzler & Leonore M. J. Simon, Principles of an Effective Domestic Violence Court,
in WINICK & WEXLER, supra note 1, at 116; Fritzler, supra note 8, at 118.
[62]. WINICK & WEXLER, supra note 1, at 124 (Vision Statement for District Court of Clark
County, Washington).
[63]. WINICK & WEXLER, supra note 1, at 112 (Conference of Chief Justices & Conference of
State Court Administrators Resolution in Support of Problem-Solving Courts).
[64]. See, e.g., Morris B. Hoffman, A Neo-Retributionist Concurs with Professor Nolan, 40 AM.
CRIM. L. REV. 1567 (2003) (“I am happy to report that the Denver Drug Court, which was the second
therapeutic drug court in the land, is now the first therapeutic drug court to have been disbanded.”);
Morris B. Hoffman, The Drug Court Scandal, 78 N.C.L. REV. 1437 (2000).
[65]. Berman & Feinblatt, supra note 6, at 81-85.
[66]. WINICK & WEXLER, supra note 1, at 3-4 (citing In re Gault, 387 U.S. 1 (1967)).
[67]. Warren, supra note 13, at 132.
[68]. WINICK & WEXLER, supra note 1, at 129-31.
[69]. Winick, supra note 9, at 289-90.
[70]. LAW IN A THERAPEUTIC KEY, supra note 19, at xvii; ESSAYS, supra note 19, at xi-xii;
PRACTICING TJ, supra note 19, at xv.
[71]. WINICK & WEXLER, supra note 1, at 125.
[72]. Fritzler, supra note 8, at 118, 121-22; Winick, supra note 3, at 201; Winick, supra note 9, at 286,
289.
[73]. WINICK & WEXLER, supra note 1, at 8-9.
[74]. Dressel, supra note 6, at xiii; WINICK & WEXLER, supra note 62, at 124 (Vision Statement).
[75]. Schma, supra note 6, at 87, 88-91.
[76]. Dressel, supra note 6, at xiii; id. at 90; David B. Wexler, Reducing Contentiousness Through
Legal Doctrine, in WINICK & WEXLER, supra note 1, at 320, 326.

I. WHAT IS THERAPEUTIC JURISPRUDENCE AND HOW IS THE FIELD OF STUDY DEVELOPING?

Over the past thirteen years, Therapeutic Jurisprudence has surpassed the initial expectations of its authors, David Wexler and Bruce Winick, of presenting a methodology for studying the therapeutic and anti-therapeutic aspects and consequences of mental health law. Therapeutic Jurisprudence has become a field of inquiry whose scope extends to all areas of law, the underlying ideological foundations of legal processes and systems, and to the nature and dimensions of professional roles.

Therapeutic Jurisprudence was introduced in 1987 as a methodological approach to study selected issues and topics in law. Rather than focusing on traditional interdisciplinary methods and research designs wherein each professional field maintains its autonomy in a joint effort, Therapeutic Jurisprudence sought to explore the commonalities and shared concerns through conceptual models that examined the areas that interfaced professional fields. The nature of the interaction between professional groups, legislative intent and public policy issues, and social science literature became basic elements in the proposed studies.

Different kinds of questions were being asked by those working on Therapeutic Jurisprudence projects. Questions targeted the centers of controversies and touched all parties in discomforting ways. Questions such as, Why do protective orders increase the risk of women being killed in domestic violence cases? Why is the best interests of the child standard not guaranteeing children’s welfare and reducing the negative psychological impact of divorce on children? The initial focus of Therapeutic Jurisprudence was on how law reform can achieve therapeutic goals and how existing laws could be made more therapeutic in their application.

The initial appeal of Therapeutic Jurisprudence was its ability to translate abstract concepts of social justice into manageable research questions that then mobilized new sectors to get involved in problem solving tasks. Groups that had little experience in research but vast experience in direct services, lawyers, judges, teachers, and proponents of public policy, found themselves drawn into the search to find out why the law was obtaining contradictory results from those it was intended to achieve. From the beginning, Therapeutic Jurisprudence was a mobilizing strategy that was able to breakup major social problems into manageable units for reflection, analysis, and social change. The essential ingredient in Therapeutic Jurisprudence was networking and connecting diverse sectors into a common problem solving task.

We see in the new book, Practicing Therapeutic Jurisprudence, the results of 13 years of intensive networking, integration of diverse fields of study, as well as the incorporation of generations of professionals from the seasoned and battle worn to the newest generation of professionals still in our classrooms. Therapeutic Jurisprudence is making a significant contribution to the growing body of scientific knowledge on human behavior, law in society, and international and comparative law. Therapeutic Jurisprudence is expanding the database available for legal decision-making and public policy review.

Therapeutic Jurisprudence views the study of law as process oriented. The nature of law and legal controversies; lawyers, their clients, the courts and the relationships between them, are the units of study. Therapeutic Jurisprudence is a dynamic field of scholarship wherein the emphasis is on the empirical testing of assumptions underlying theories of judicial rules, and social and psychological theories. Therapeutic Jurisprudence has not remained at one level of analysis and does not suffer from nearsightedness. Therapeutic Jurisprudence includes itself as an object worthy and needful of study.

II. NEW CHALLENGES IN THERAPEUTIC JURISPRUDENCE

With the publication of Practicing Therapeutic Jurisprudence, professors Wexler, Winick and Dr. Stolle have introduced significant dimensions to their work. Therapeutic Jurisprudence takes a stronger position and broader scope as to professional accountability. Those who propose, write, interpret, study or implement the law, share, in part, responsibility for the psychological, social and predictable consequences of the law. No longer can we be case specific in our work without reflecting on the larger meaning and scope of what we are doing. We must consider the overall impact of our work on our clients, social issues and effectiveness. Practicing Therapeutic Jurisprudence enters into the realm of private office practices and targets specific interpersonal professional relationships thus bringing professional accountability much closer to everyday practices, attitudes and expectations.

For example, as a clinical and forensic psychologist sensitive to Therapeutic Jurisprudence, my task in a case of a 20 year old homeless and mentally ill youth, charged with petty theft, should include not only the clinical assessment of mental competency, but also assess the youth’s state of social marginality. Whether he can be reintegrated into productive society? Will the diagnostic process push him further down the road to disability, incompetence and powerlessness or become a turning point in his life where he is given options to choose from?

Instead of documenting the youth’s diminished capacities to substantiate a reduction in sentence or have the charges filed, it may be in his best interests to assume responsibility for his actions and propose a payment plan from his street corner earnings, to pay back the stolen goods. Is my professional duty best exercised by focusing only on this young man’s mental competence for these charges, or should I assess the person, his life stage, and present circumstances and propose a diagnostic impression that includes a problem focused approach to get him off the streets and reconnected to a social group as a contributing member? Practicing Therapeutic Jurisprudence provides the analytical framework wherein larger social issues can be conceptualized on a collective and individual basis. With the emphasis on professional accountability, we must not only treat, assess, counsel or advise the person but also consider the consequences of the decisions and opinions taken.

In addition to accountability, Practicing Therapeutic Jurisprudence underscores the fiduciary duty in the practice of law. No longer can we work with the law and in legal areas and not consider the economic, social, moral, ethical and psychological impact of our work on the person and collectivity. We have a duty to anticipate and take measures to reduce the harm that may be caused by legal interventions and processes. At times I have warned lawyers in personal injury cases, you may win this case but if the litigation continues for much longer and at this level of conflict, you may lose your client to suicide. Practicing Therapeutic Jurisprudence seeks to reduce the carnage of litigation by design. With a focus on the quality of the lawyer- client relationship from the outset of a case, Practicing Therapeutic Jurisprudence aspires to reduce the need for referrals for treatment to help the parties survive the divorcing process, initiate preventive strategies that anticipate and address the psychological harm caused by sexual harassment, and ameliorate the factors and conditions that contribute to burnout for all professionals that work in close contact with the law.

The collection of studies in Practicing Therapeutic Jurisprudence take the step forward from praising the intuitive abilities and natural therapeutic qualities that some people possess to incorporating the expectation of compassion and cultural sensitivity as an essential part of everyone’s professional role. We are expected to be able to enter into the other person’s inner world. We are expected to try and understand their context and be sympathetic to the options before them and the struggle in decision making they are facing. For those that are weak in these areas of interpersonal competence, these qualities of sensitivity and compassion can be learned. Interpersonal skills and competencies should be taught as part of curriculum and required for graduation.

Psychology and the legal profession, as viewed by Therapeutic Jurisprudence, are moving away from an ethical framework based on morals, virtues and personal qualities such as the capacity for compassion, ability to trust, and humility. To quote Gerald Koocher & Patricia Keith-Spiegel, “[p]rofessional conduct in line with principle ethics is seen as acting according to moral principles (do no harm, respect personal autonomy, accord dignity, and accept accountability). Subscribing to principle ethics implies that ethical behavior can be fostered and be the result of professional obligation and deliberate adherence to rules rather than moral commitment according to one’s conscience and personally held standards.” [FN1]

Principle ethics conflicts with traditional ethical cannons of zealous advocacy wherein the lawyer is expected to suspend moral judgment and advocacy is the goal. In psychology and after Tarasoff, we no longer tell our clients that in ethical dilemmas their welfare will come first. We tell them that should the safety of third parties be at risk, our first professional responsibility is to the community at large and welfare of others. Our second level of duty is to our professional standards and the standard of care. Lastly, and after these two levels of duty have been exercised, we will consider the client’s welfare. Zealous advocacy, in psychology, would probably risk ethical violations and put the community at risk.

Practicing Therapeutic Jurisprudence looks to the teaching of law, curriculum revision and the training of lawyers as new areas for potential change. New trends in professional training posits that if one is not naturally compassionate, sensitive and respectful, one can learn to be so. Clinical judgment can be taught. The professional judgment standard can be defined and explained. As lawyers move into more encompassing roles, care must be taken in those areas that touch on personal and professional boundaries, dual roles and bartering for services. The potential for abuse and exploitation increases.

The model of client-centered lawyering may be inappropriate given its focus on advocacy from the client’s viewpoint. The lawyer may be held accountable by professional standards and fiduciary duties to relate to the client’s legal situation in ways that do not foster individual interests over a community standard. The exploration of new roles and expectations for lawyer/client relationships proposed in Practicing Therapeutic Jurisprudence may require a revision of ethical codes and re-training for those whose professional development followed traditional models of advocacy and adversarial role modeling.

Practicing Therapeutic Jurisprudence introduces the novel task of analyzing psycho-legal soft spots in case management. The process of law, the relationships between people, and the ethics of the process are as important as the outcome of litigation. The analysis of psycho-legal soft spots as a teaching and capacitating tool for continuing education provides a framework for highlighting and sensitizing the dynamic aspect of a case’s development in an explicit and systematic way. Case developments become units of analysis that are then generalized to larger constructs to teach awareness and responsibility for the outcomes of small decisions we make throughout a case.

Practicing Therapeutic Jurisprudence leaves us with lingering questions when we look at the expectations for research. Are the tools of the social sciences adequate for measuring outcomes of human interaction? How do we deal with empirical uncertainty in every day life? We had better find out. The only way to improve research designs is by seeing if they can adequately address our questions. The Therapeutic Jurisprudence lens can help us with blind spots in law.

Let’s briefly look at one such blind spot and see how the Therapeutic Jurisprudence lens can help clarify areas in need of study. At a time when cultural diversity and awareness are requirements for professional practice, we have areas of law and psychological thought that date back in history. For example, how would one begin to design an empirical study to test the reliability and falsifiability of the dying declaration as an exemption to the hearsay rule? The first problem is that we enter an area of law that is thought to be based on indisputable judicial fact. Spontaneous declarations of a dying person are thought to have a special quality that allows their admission into evidence, as an exception to hearsay evidence. The question becomes how could Therapeutic Jurisprudence methodology help free research in this area from the restraints of ideology and limitations of social science research methods?

Let’s look at the task before a research project on dying declarations. First of all, one must examine the ideological foundation of a dying declaration. I suggest the basic postulates of the Dying Declaration as an exemption to the hearsay rule to be:

1. Presupposes a religious belief system wherein there is a belief in the afterlife;

2. That at the time of death, one will come face to face with one’s creator (that is stress);

3. That this face-to-face encounter will inspire a moral transformation in those that have not lead exemplary lives;

4. Presumes that one fears God;

5. That if one should lie at the moment of death, there are serious consequences such as going straight to hell with no further opportunities for repentance;

6. Presumes that one is aware of the fact that one is about to die and that death is final;

7. That one is able to intellectually function just prior to one’s death in a rational, organized, coherent and goal directed manner;

8. Assumes that one is competent to be able to die and offer a dying declaration;

9. Assumes that the motive to lie is silenced by one’s awareness of the imminence of death;

10. Assumes that at the precise moment facing death, one’s mind is induced to speak the truth;

11. Basically assumes that the dying declaration is a religious experience.

12. There is likewise a parallel premise structure for the listener to a dying declaration.

Are these universally held truths? Are there any universally held truths that law wants to uphold for all citizens? Have these premises been subject to empirical study and debate in the social sciences? What are the variables that you would use to measure the construct of dying declarations? What information would you need to know to be able to assess the reliability of a dying declaration? Can the dying declaration construct be subject to testing? What is the margin of error in dying declarations? What would a Daubert gate-keeping hearing have to say as to the scientific foundation upon which the dying declaration is based? Could there be some problems with cultural diversity and sensitivity issues in the assumed universality of the dying declaration religious model? We have a lot of work to do with ideology and research methods that hopefully the Therapeutic Jurisprudence lens will continue to help direct our efforts in these soft and blind spots.

Before concluding, I would like to comment on the contributions of Professors Wexler & Winick. In Professor Wexler and Winick’s personal styles we find qualities that are rare in academic settings. Their little attention to professional titles and co-authorship recognition and eagerness to work with experienced and novice colleagues are signs of mental health. They evoke confidence that the ideas behind Therapeutic Jurisprudence can stand on their own merit and that their mark in history is made and need not be reaffirmed and proclaimed at every opportunity.

Both Professor Wexler and Winick have a high degree of acceptance and openness for different understandings of Therapeutic Jurisprudence. They do not correct people and set them straight so that others think like they do. Therapeutic Jurisprudence is not imposed on research projects or ideas under consideration. It is an attitude towards data collection, reflection, and responsibility; however you want to do it.

Professors Wexler and Winick enjoy their work as instigators and mentors. They are able to keep a balance between digging for more meaning and letting the student/colleague find their way without pushing, dominating, or turning the relationship into one-upmanship or another opportunity for ego enhancement.

The research style of Therapeutic Jurisprudence is directly linked to Professors Wexler and Winick’s personal styles wherein intellectual property rights are not possessed but willfully shared. Participation is open, colleagues are treated with confidence inspiring tact and given psychological space wherein they are listened to, their ideas reflected upon, and joined with others who are actively engaged in similar or parallel research.

Professors Wexler and Winick have incredible skills of networking and connecting that require an enormous amount of hard work, thoughtfulness, commitment to an idea, and stamina. While they serve as the key link between new combinations of people, professions, countries and ideas, their own lives carry the burdens of maintaining continuity, stability and focus.

[FNa1]. DENNIS STOLLE, DAVID WEXLER & BRUCE WINICK. PRACTICING THERAPEUTIC JURISPRUDENCE, LAW AS A HELPING PROFESSION (2000) (presented at the University of Puerto Rico, School of Law on November 29, 2000).

[FN1]. GERALD KOOCHER & PATRICIA KEITH-SPIEGEL, ETHICS IN PSYCHOLOGY, PROFESSIONAL STANDARDS AND CASES 5 (2d ed. 1998).

Why be concerned about involuntary civil commitment in an era when it is difficult to get approval to admit even very disturbed psychiatric patients? In the first few pages of this impurtant book, Winick makes the point that many patients continue to confront the reality of involuntary commitment. Then, using clear and graceful prose, he launches into an encyclopedic analysis of the historical, legal, clinical, and ethical issues surrounding involuntary commitment. Combining legal scholarship with clinical insights, Winick establishes a roster of challenging questions that provides a valuable guide for the theoretical and empirical work of those interested in mental health law and the treatment of the mentally ill. — J. Richard Ciccone, M.D., University of Rochester School of Medicine.

Bruce Winick
will discuss his new book at a booksigning on
Sunday, March 6, 2005 at 6:00 p.m.
Wine & Cheese to follow

Books n’ Books
265 Aragon Avenue
Coral Gables, FL. 33134
305 442-4408