In 1971, Bruce Ennis argued that “if persons are involuntarily to be confined because of mental illness, the standards and procedures for confinement should guarantee no fewer rights than those afforded criminal defendants” (Wexler & Winick, 1992). In the 1980’s, therapeutic jurisprudence began as an interdisciplinary scholarly approach for mental health law. Scholars were encouraged to study the consequences of legal rules to begin to reshape and redesign law in order to not only minimize antitherapeutic effects, but to increase the law’s therapeutic potential (Winick, 2003).
As tougher sentencing laws for drug offenses were adopted by the federal government and most states in the 1980s and 1990s, specialty courts were established to reduce swollen court dockets and recidivism by placing the defendant in supervised treatment instead (Petrila, 2004). Now, for nearly 30 years, jail diversion programs have been supported as a way to prevent people with mental illnesses and substance use disorders from unnecessarily entering the criminal justice system by providing more appropriate community-based treatment (Steadman et al., 1999). Veterans Treatment Courts were then patterned after these treatment-intensive, peer-intervention oriented protocols that have proven effective in drug and mental health courts.
Therapeutic jurisprudence is a legal theory that utilizes psychological and other social science knowledge to determine ways in which the law can enhance the well-being of individuals who experience the law (Birdgden & Ward, 2003). Legal rules and the way they are applied are social forces that produce inevitable, and sometimes negative, consequences. Therapeutic jurisprudence criticized the various aspects of mental health law producing antitherapeutic consequences for the people the laws were designed to help. (Winick, 2003). It seeks to focus attention on the therapeutic dimension of mental health law and practice and to illuminate the therapeutic implications of legal practice (Wexler & Winick, 1992).
Kondo (2000), reported that between 600,000 and one million men and women are jailed each year, and 40-50% of the estimated two million homeless Americans, have severe mental illnesses. He described crowded jails and prisons as “surrogate mental hospitals” that are utilized to house nonviolent mentally ill offenders for nuisance crimes such as urinating in alleys, sleeping in airports, or harassing people in front of convenience stores. The mentally ill inmates are frequently punished, physically restrained, or secluded in isolation cells because of the lack of understanding of mental illness. Judges presiding over these non-violent misdemeanors often stated “these inmates should be in treatment, not in and out of jail.” Therapeutic jurisprudence probes the law itself as a social and economic force in producing both beneficial and detrimental effects upon the individuals most often minimized in the legal community (Kondo, 2000).
Wexler & Winick (1992) believed that mental health law should be restructured to better accomplish therapeutic values. They argued that legal decisionmaking should consider not only economic factors, public safety, and the protection of patient’s rights, but should also take into account the therapeutic implications of a rule and its alternatives. While the experience of legal matters may be detrimental to certain individuals, with therapeutic jurisprudence, such experiences can also result in positive change (Birgden & Ward, 2003). It uses insights from psychology and the behavioral sciences to critique legal and judicial practices, and to suggest how it can be reshaped to increase the therapeutic potential and avoid the risk of psychological harm (Winick, 2003).
Therapeutic jurisprudence is not only concerned with measuring the therapeutic impact of legal rules and procedures, but also the way they are applied by various legal actors. The legal actors (judges, lawyers, police officers, expert witnesses testifying in court, etc.) are therapeutic agents that also have an effect on the mental health and psychological well-being of the people in the legal setting (Winick, 2003). Kondo (2000) believe these legal actors possess a humanitarian responsibility to fully analyze and comprehend potential therapeutic and antitherapeutic consequences of the law. Therapeutic jurisprudence seeks to sensitize the legal policy makers to the therapeutic impact of legal rules and procedures, and to serve as a tool to frame a new and useful research agenda (Wexler & Winick, 1992).
When faced with psychological turmoil created by the criminal justice system, an individual will either become amenable or resistant to change. Therapeutic jurisprudence can help the criminal justice system capitalize on the “therapeutic moments” in order to maximize the beneficial effects of the law and minimize the resistance to change (Birgden & Ward, 2003). It works towards a common goal of a more comprehensive, humane, and psychologically optimal way of handling legal matters. Problem solving courts use principles of therapeutic jurisprudence to approach the processing of cases and enhance their functioning (Winick, 2003). It can hopefully provide individuals with an opportunity to change themselves and improve their overall level of personal and social functioning (Birgden & Ward, 2003).
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