Bruce J. Winick was Professor of Law and Professor of Psychiatry and Behavioral Sciences at the University of Miami. David B. Wexler is Professor of Law at the University of Arizona. Together, they are the leading authorities on “therapeutic jurisprudence.” They have co-authored and co-edited numerous books and articles, including the landmark volume Law in a Therapeutic Key. In January 2005, Winick and Wexler spoke with the Center for Court Innovation’s Carolyn Turgeon about the relationship between problem-solving justice and therapeutic jurisprudence.
Are problem-solving courts an example of therapeutic jurisprudence?
Wexler: My understanding is that problem-solving courts really were developed by judges as a practical, intuitive, creative way of addressing the problem of revolving-door justice. They were largely intuitive and atheoretical, and they developed at about the same time as therapeutic jurisprudence. In contrast, therapeutic jurisprudence developed as an academic interdisciplinary perspective that is interested in what works, in a therapeutic or rehabilitative sense, in terms of legal arrangements and therapeutic outcomes. So there’s an obvious overlap and now they are really starting to pay a lot of attention to each other because what works in successful problem-solving courts would be of obvious interest to therapeutic jurisprudence, while the literature of therapeutic jurisprudence can certainly help strengthen problem-solving courts and a problem-solving approach in courts generally.
Winick: I would add simply, that as we’ve written in an article in the Touro Law Review that we co-authored on drug treatment court, we saw problem-solving courts and therapeutic jurisprudence as having a symbiotic relationship. They are not one and the same, they are not coterminous. We hope that problem-solving courts are applying principles of therapeutic jurisprudence and are furthering at least some of its objectives. If a judge is seeking to facilitate the rehabilitation of an offender who might have a drug or domestic violence or mental health problem, etc., then to that extent, the judge is functioning as a therapeutic agent. In our view, understanding some of the principles of psychology and social work would make that judge a better judge.
Wexler: I would add that problem-solving approaches and problem-solving justice are probably somewhat broader than therapeutic jurisprudence. But to the extent that you’re dealing with materials from, say, psychology, social work, and criminology, and looking at what works in a therapeutic or a rehabilitative sense, then we’re really talking about therapeutic jurisprudence or judging or lawyering with an ethic of care. [Center for Court Innovation Director] Greg Berman, incidentally, discussed in a recent article the close relationship between therapeutic jurisprudence and problem-solving courts, but did distinguish the two, as I think is appropriate.
Picking up on what you said, what works in problem-solving courts that is of special interest to therapeutic jurisprudence?
Wexler: Well I would think that some of the key components of drug treatment courts—things like ongoing judicial supervision and some of the sanctioning processes—are of great interest to therapeutic jurisprudence. Therapeutic jurisprudence can in turn contribute to the functioning of those courts by suggesting how judges can increase compliance with certain release conditions, how they can encourage the development of coping skills in offenders, and those sorts of things. And another thing from drug treatment courts that are of great interest to therapeutic jurisprudence are the types of judicial praise and graduation ceremonies they use; those sorts of things are right on point with the type of material that therapeutic jurisprudence is interested in.
Winick: There’s a general sense in the problem-solving court area that the offender/judge interaction is all-important. Well, what’s inside of that black box of the offender/judge interaction? I think a lot of judges just do their own thing instinctively and some are very good at it, I have no doubt. But what therapeutic jurisprudence attempts to contribute is to identify principles from psychology and social work that could be applied by judges playing that role. These principles can make judges more aware of things like the psychology of procedural justice, the importance of treating people with dignity and respect, and concepts like behavioral contracting and motivational interviewing—all of which would simply improve the functioning of those courts.
Do you think that domestic violence courts and community courts achieve explicitly therapeutic ends?
Winick: Among other things, they do. Certainly one of the ends of a domestic violence court, of course, is punishment of the perpetrator. That’s a retributivist end. We don’t say that’s inappropriate but that’s not part of the therapeutic jurisprudence mission. But a domestic violence court also has as part of its aim an attempt to rehabilitate the offender, to diminish his battering behavior, and also to pay attention to the needs of the victim and provide a variety of services that may help to meet those needs, which are of course mental health needs. To that extent, certainly domestic violence court is serving what we could call therapeutic jurisprudence aims.
Wexler: But I think again that those are examples of courts that have therapeutic jurisprudence components, but probably are broader than therapeutic jurisprudence concerns.
Where do you see therapeutic jurisprudence going next?
Winick: Well actually we’ve been working quite recently in applying principles of therapeutic jurisprudence to legal education. We’ve gone through a whole variety of areas in which we first looked at mental health law in an effort to reform it to make it more therapeutic. We then saw therapeutic jurisprudence extended across the legal landscape to a whole variety of issues of substantive law—largely how to reform the rule of law—and from there we went to how law is applied, looking at how various legal actors, like lawyers, judges, police officers, clinicians testifying in court, can play their roles differently in ways that might diminish anti-therapeutic effects and maximize therapeutic potentials. We’ve written in the area of lawyering, looking at how lawyers can practice with an ethic of care and value the therapeutic interests of their clients in addition to their legal rights and needs. And we wrote a book about that in the year 2000—Practicing Therapeutic Jurisprudence: Law as a Helping Profession—and then we did this work culminating in the Judging in a Therapeutic Key book in 2003, which is applying those notions to judges.
The next frontier, as it were, is applying these notions to legal education. How can we improve legal education? We’re talking about a model of the lawyer that’s a little different from traditional legal education, We’re also talking about teaching our law students interpersonal skills that are important and perhaps necessary for them to be effective interviewers and counselors, and satisfied happy professionals, who really serve their clients’ needs and interests. So I would say in a way that that’s the next frontier. We’re about to publish a symposium issue in the St. Thomas University Law Review on therapeutic jurisprudence and clinical legal education and skills training.
Wexler: That includes many areas of the law. So there’s elder law, criminal law, immigration law, bankruptcy law, family law, juvenile law, and more.
Winick: These are all areas in which clinical legal education in the law schools are beginning to use therapeutic jurisprudence principles in their teaching of law students and in their counseling of clients.
Wexler: I think the criminal law practitioner is something that therapeutic jurisprudence is really beginning serious work on now. There’s been a little bit before and there’s some in the St. Thomas symposium issue that will be coming out, but I think that’s an area that really deserves lots of attention now and probably overlaps very much with problem-solving justice. And this would apply to a criminal lawyer’s role as a rehabilitative agent, and to the lawyer’s role in many of the problem-solving courts, as well as in general courts.
There’s also, related to this, a real international interest in therapeutic jurisprudence. Therapeutic jurisprudence really moved, as Bruce said, across the entire spectrum, from mental health law to criminal law, family law, juvenile law, health law, personal injury law, etc. But it has also moved from theory to practice as we’ve said, to lawyering and judging, and it’s become very interdisciplinary, including partnerships with social workers, criminologists, psychologists, and so on. And there’s a tremendous international dimension to it now, especially in Canada, Australia, and New Zealand. There’s a recent Canadian manual that’s called Judging for the 21st Century: A Problem-Solving Approach that largely is dedicated to applying therapeutic jurisprudence principles to general courts in Canada. There are also courses that are emerging in several different law schools on therapeutic jurisprudence. There’s a website that the International Network on Therapeutic Jurisprudence maintains, at www.therapeuticjurispridence.org, that lists, among other things, courses being taught in law schools and other places on therapeutic jurisprudence. It’s a growing list.
Winick: I would add to something that David already said about how the Canadian courts are applying therapeutic jurisprudence in courts of general jurisdiction. I think that too may be the next frontier. A lot of the work in the judging arena has been with so-called problem-solving courts, specialized courts that are designed to deal with specific kinds of problems like drug treatment, domestic violence, etc. But we are, I think, going to be seeing the extension of those approaches, techniques, and principles into courts of general jurisdiction. Just the other evening I had dinner with a civil court judge here in Miami who was a judge in dependency court prior to being on the civil court, and she had done therapeutic jurisprudence work in the dependency court dealing with foster children and the like. Now that she deals with civil disputes, she has brought with her a lot of those therapeutic jurisprudence tools and approaches and attitudes.
Wexler: I was recently in New Zealand, where they only have one problem-solving court, a youth drug court in Christchurch. The original judge from there, John Walker, eventually returned to Wellington on the general bench but was so excited about the work he’d done that he has been giving lectures on what he calls therapeutic interventions—trying to interest judges generally in dealing with problem-solving and a different approach to judging and using concepts of therapeutic jurisprudence in general. And there’s real interest in that. In Western Australia, the magistrates have been applying therapeutic jurisprudence in the bush, really, with very limited resources and with a very sparse population over a huge geographic area. But they really think that when you have limited resources the court may be one of the few agencies that can attend to people’s problems and hook people up with different services.
Do you have any thoughts about what sorts of principles from problem-solving courts and therapeutic jurisprudence you see being applied most effectively to general court calendars?
Wexler: Well I think this development, as Bruce says, of a judge/offender relationship, coordination of services, of judicial praise and early termination of probation, the ongoing judicial supervision, the principles of enhanced compliance—all of these are principles that can be effectively applied to non-problem-solving courts.
Winick: I would add that sensitizing judges to the need to develop their interpersonal skills is an important part of being a problem-solving court judge, one that judges will take with them to other courts to become better judges. They’ll be able to deal better with people. Judges haven’t had to deal with people before; they’re sort of up on that bench, they are authority figures, they pronounce justice, and they haven’t always cared about the people who appear before them. Well a hallmark of therapeutic jurisprudence is the idea that, whether you understand it or not, whether you intend it or not, you are, in your interactions with that person, imposing either negative or positive therapeutic consequences.
Wexler: I think that’s absolutely true. One judge was telling me that when she was appointed to the bench, a senior judge gave her some advice and it was, “Just process the paper. Don’t look at the people.” We’ve come a long long way from that, I hope, and these kinds of interpersonal relationships are very important. Bruce and I have been involved with a professor of social work at Long Beach State University, Carrie Petrucci, in surveying different judges who claim to practice therapeutic jurisprudence internationally. So much of it is: make eye contact with the defendant; introduce yourself; make an effort to pronounce the defendant’s name (or all of the parties’ names) correctly. So much of is related to this interpersonal relationship or interpersonal skills that Bruce was talking about.
Winick: It kind of reframes the role of the judge, and once judges get that, they see themselves playing a different role. They are helping people. Wow! What a revolutionary idea that is for a judge.
Wexler: And satisfying. Some of the research that’s come out suggests that judicial satisfaction is much higher in that type of practice.
Are you surprised that therapeutic jurisprudence has been so popular?
Wexler: We’re surprised, but I think the time is right for therapeutic jurisprudence, and the emergence of these other related vectors, like problem-solving courts, like collaborative law and collaborative divorce, restorative justice, different types of alternative dispute resolution—they’ve kind of all emerged at the same time, indicating, I think, a general societal need to get away from the very traditional legal and judicial system.
Winick: And in particular, in a criminal related area, the sort of retributivist emphasis that for the last 25 years or so we’ve seen our criminal system taking. I think the pendulum is beginning to swing a bit now away from that and in the direction of a new emphasis on rehabilitation. We can’t imprison everyone. We’re realizing that that doesn’t make a lot of sense. The prisons often cause crime and we have to understand that we’re going to be releasing a lot of prisoners to the community, and hence there’s a new interest in how to do that, how to reintegrate people into the community. The new focus that I see emerging in the criminal area on reentry is one that I think will find therapeutic jurisprudence principles and techniques most welcome.