Therapeutic Jurisprudence

Therapeutic jurisprudence is an approach to legal scholarship that examines whether the legal system has a therapeutic or antitherapeutic effect on individuals. It draws from the fields of psychology, psychiatry, social work, criminal justice, public health, and others to examine, and advocate for changes in, laws and legal practices that will result in more therapeutic outcomes. It critically evaluates the impact of laws, courtroom practices, and legal actors on the well-being of offenders. Originally, therapeutic jurisprudence scholars focused mostly on mental health law. For example, they asked how the insanity defense, civil commitments (the involuntary incarceration of the mentally ill in mental institutions), and other legal arrangements could be reformed to better benefit the mentally ill. With regard to competence to consent to hospitalization, for example, some scholars suggested a restructuring of the legal standard of competence based on the psychology literature.

Therapeutic jurisprudence has expanded to affect many other areas of law. For instance, therapeutic jurisprudence is prevalent in the “problem-solving courts,” such as drug courts, mental health courts, teen courts, domestic violence courts, and reentry courts. Drug courts are understood to be the first criminal justice institution to rely on and consistently use the ideas of therapeutic jurisprudence scholars. These courts rely on techniques such as government “wagers” and “behavioral contracting” (getting patients to agree to comply with a suggested therapeutic course). These techniques draw on cognitive behaviorial therapies to persuade offenders, referred to as “clients,” to examine and modify their own behavior. Drug courts can replace direct criminal sanctions; through them, the government “bargains” with drug addicts to change and to comply with the law. Another example of a therapeutic jurisprudence is found in teen courts, where youths take an active role in judicial proceedings—for example, by serving as attorneys for victims. Through this practice, teen courts try to engender more empathy in delinquent youths for those whom they have offended.