Therapeutic jurisprudence, neorehabilitationism, and judicial collectivism: the least dangerous branch becomes most dangerous.

• Author: Hoffman, Morris B.

INTRODUCTION

The movement that calls itself "therapeutic jurisprudence" (1) is both ineffective and dangerous, in almost the same way that its predecessor--the rehabilitative movement that became popular in the 1930s and was abandoned in the 1970s--was both ineffective and dangerous. Drug use, shoplifting, and graffiti are no more treatable today than juvenile delinquency was treatable in the 1930s. The renewed fiction that complex human behaviors can be dealt with as if they are simple diseases gives the judicial branch the same kind of unchecked and ineffective powers that led to the abandonment of the rehabilitative ideal in the 1970s. In fact, this new strain of rehabilitationism has produced a judiciary more intrusive, more institutionally insensitive and therefore more dangerous than the critics of the rehabilitative ideal could ever have imagined.

1. THE REAL FACE OF THERAPEUTIC JURISPRUDENCE

   In a drug court in Washington, D.C., the judge roams around the courtroom like a daytime TV talk show host, complete with microphone in hand. (2) Her drug treatment methods include showing movies to the predominantly African-American defendants, including a movie called White Man's Birth. (3) She often begins her drug court sessions by talking to the "clients" (4) about the movies, and then focusing the discussion on topics like "racism, justice, and equality." (5) The judge explains her cinemagraphic approach to jurisprudence this way:

   Obviously they need to talk about their own problems and what leads to them, but I also think that it's good to have distractions in life. I've found out that if there are periods of your life when you are unhappy, sometimes going out to see an interesting movie or going out with a friend and talking about something else, or going to the gym to work out, these kinds of things can help you through a bad day. (6) After the film discussion, the session begins in earnest. Defendants who are not doing well are scolded and sometimes told stories, often apocryphal, about the fates that have befallen other uncooperative defendants or the drug court judge's own friends and family members. (7) Some defendants are jailed for short periods of time and/or regressed to stricter treatment regimens, and eventually some are sentenced to prison. (8) The audience applauds defendants who are doing well, and the judge hands out mugs and pens to the compliant. The judge regularly gives motivational speeches that are part mantra and part pep rally. Here is a typical example:

   Judge: Where is Mr. Stevens? Mr. Stevens is moving right along too. Right?

   Stevens: Yep.

   Judge: How come? How come it is going so great?

   Stevens: I made a choice.

   Judge: You made a choice. Why did you do that? Why did you make that choice? What helped you to make up your mind to do it?

   Stevens: There had to be a better way than the way I was doing it.

   Judge: What was wrong with the way you were living? What didn't you like about it?

   Stevens: It was wild.

   Judge: It was wild, like too dangerous? Is that what you mean by wild?

   Stevens: Dangerous.

   Judge: Too dangerous, for you personally, like a bad roller coaster ride. So, what do you think? Is this new life boring?

   Stevens: No, not at all.

   Judge: Not at all. What do you like about the new life?

   Stevens: I like it better than the old.

   Judge: Even though the old one was wild, the wild was kind of not a good wild. You like this way.

   Stevens: I love it.

   Judge: You love it. Well, we're glad that you love it. We're very proud of you. In addition to your certificate, you're getting a pen which says, "I made it to level four, almost out the door." (9)

   This is the real face of therapeutic jurisprudence. It is not a caricature. Except for the movie reviews, this Washington, D.C. drug court is typical of the manner in which this particular kind of therapeutic court is operating all over the country. Defendants are "clients"; judges are a bizarre amalgam of untrained psychiatrists, parental figures, storytellers, and confessors; sentencing decisions are made off-the-record by a therapeutic team (10) or by "community leaders"; (11) and court proceedings are unabashed theater. (12) Successful defendants--that is, defendants who demonstrate that they can navigate the re-education process and speak the therapeutic language (13)--are "graduated" from the system in festive ceremonies that typically include graduation cake, balloons, the distribution of mementos like pens, mugs, or T-shirts, parting speeches by the graduates and the judge, and often the piece de resistance--a big hug from the judge. (14)

   Drug courts are the most visible, but by no means the only, judicial expression of the therapeutic jurisprudence movement. The idea that judges should be in the business of treating the psyches of the people who appear before them is taking hold not only in drug courts but in a host of other criminal and even civil settings. Some therapeutic jurists see bad parenting, domestic violence, petty theft, and prostitution as curable diseases, akin to drug addiction, and argue that divorcing parents, wife-beaters, thieves, and prostitutes should therefore be handled in specialized treatment-based courts. (15) The objects of the treatment efforts include not only the litigants in civil cases, and the criminals and victims in criminal cases, but also the "community" that is "injured" by the miscreant. Petty criminals in many so-called "community-based courts" are in effect sentenced by panels of community members, typically to perform various community services as deemed necessary by the panels, in order to "heal" the damage done to the "community." (16)

   It is curious that the existing scope of the therapeutic jurisprudence movement, with the exception of drug offenses, is limited to relatively minor petty and misdemeanor criminal offenses. (17) We might ask ourselves why the movement ignores the entire spectrum of violent felonies, so many of which have an apparent psychiatric component. We don't have specialized child molester courts in which "clients" are hugged and pampered and cajoled into right-thinking. Why not? My suspicion, as discussed in more detail below, (18) is that what much of therapeutic jurisprudence is really about, at least in the criminal arena, is a de facto decriminalization of certain minor offenses which the mavens of the movement do not think should be punished, but which our Puritan ethos commands cannot be ignored. Supporters of the movement recognize that as a political matter they cannot go too far blurring the distinction between acts and excuses. (19)

   True to their New Age pedigree, therapeutic courts are remarkably anti-intellectual and often proudly so. For example, the drug court variant is grounded on a wholly uncritical acceptance of the disease model of addiction, a model that is extremely controversial in the medical, psychiatric, and biological communities. (20) All of the therapeutic jurisprudence variants presume that the underlying problem in virtually all kinds of cases--drug abuse, domestic violence, delinquency, dependency, divorce, petty crimes--is low self esteem, despite the fact that many psychological studies have shown that violent criminals tend to have high self esteem. (21)

   The question asked in these new therapeutic courts is not whether the state has proved that a crime has been committed, or whether the social contract has otherwise been breached in a fashion that requires state intervention, but rather how the state can heal the psyches of criminals, victims, families, dysfunctional civil litigants, and the community. The goal is state-sponsored treatment, not adjudication, and the adjudicative process is often seen as an unnecessary and disruptive impediment to treatment. (22) Because the very object is treatment, rehabilitated criminals deserve no punishment beyond what is necessary to restore them, their victims, and the community to their prior state. (23)

   The therapeutic jurisprudence movement is not only anti-intellectual, it is wholly ineffective. The treatment is a strange combination of Freud, Alcoholics Anonymous, and Amway, whose apparent object is not really to change behaviors so much as to change feelings. (24) Drug courts are a perfect example. The success of drug-court treatment programs is measured more by a defendant's professed attitude adjustment than by the sort of concrete measures one might expect of such programs, such as whether the defendant stops using drugs. As long as defendants are compliant with treatment ("buying into the program," as addiction counselors say), they are moved from treatment phase to treatment phase, often irrespective of whether the treatment is actually working. As James Nolan puts it, drug court success "is evaluated in large measure by whether or not clients adopt a particular perspective." (25)

   The particular perspective required is the disease model of addiction. Compliance is almost always measured by a defendant's willingness to admit that his or her drug use is a disease. Any resistance to the disease model is reported as "denial," a crime apparently much worse than continued drug use. (26)

   The therapeutic jurisprudence literature is almost completely devoid of any empirical discussion of whether litigants, defendants, and victims, let alone "communities," are actually being helped by all this perspective-changing treatment, and understandably so. The imprecise words common to the therapeutic language--words like "healed," "restored," and "cured"--are simply incapable of being subjected to rigorous testing.

   When investigators have looked at less imprecise measures of success--like recidivism rates--the therapeutic promise has proved wholly ineffective. (27) For example, the very first effectiveness study performed on the very first modern drug court--in Dade County, Florida--showed that drug defendants treated in the drug court and drug defendants processed in the traditional courts...