A warmer welcome home: the need for incorporating therapeutic jurisprudence in reentry courts.

• Author: Geary, Kelsey

1. INTRODUCTION

   "What goes up[,] must come down"; what goes in, must come out. (2) Right? (3) Not always. (4) Through an evolution in the court system that gave birth to problem solving courts, and the emerging field of therapeutic jurisprudence, we see an ability to reform and rehabilitate individuals in such a way that the individual who enters the criminal system is not necessarily the same person who must emerge from the other side. (5)

   Therapeutic jurisprudence is the school of thought which looks at how the legal system affects the emotional and psychological well being of a party in a legal suit, whether a civil plaintiff or defendant, or a criminal defendant. (6) The therapeutic jurisprudence movement hopes to raise and address questions concerning the effects of the legal process on those involved, but also hopes for the production of healthier individuals after his or her legal dilemma has concluded by promoting therapeutic interactions throughout the legal process. (7) Additionally, it looks to reduce recidivism (8) and create a behavioral change in those who are in the revolving door of the criminal justice system. (9) With practitioners, judges and scholars advocating for the practices of therapeutic jurisprudence to seep into our basic civil (10) and criminal (11) courts, as well as the law school setting, (12) certain applications need additional analysis and reform. (13) One area that would benefit from review is the crucial time period after an inmate is released from incarceration and begins a parole sentence. (14)

   In 2012, 408,186 inmates were released from prison and put on a conditional release program such as mandatory parole. (15) Sadly, statistics show two-thirds of those parolees will be arrested again for another offense within the next three years. (16) Several judicial districts across the country have implemented reentry courts in attempts to address this problem. (17) These courts assist parolees in reintegrating into society by empowering and encouraging the participants in hopes of increasing adherence to parole guidelines and reducing recidivism. (18) However, the effectiveness of these courts is still questionable, and, based on the small amount of available research, they need additional reform. (19)

   This comment will focus on one of the first established reentry courts--the Harlem Reentry Court ("HRC")--by evaluating its effectiveness with the basic principles of therapeutic jurisprudence. (20) Section II provides general background on all the relevant topics: therapeutic jurisprudence, problem-solving courts, and reentry courts. (21) Section III specifically focuses on the background, formation, and strategies of the HRC. (22) Section IV gives an in-depth analysis of HRC's process, and how recognizing and further incorporating therapeutic practices could increase its success. (23) Finally, Section V will conclude the argument by advocating for nationwide exposure and implementation of reentry courts for parolees around the country with a greater emphasis on therapeutic jurisprudence. (24)

2. BACKGROUND

   1. THERAPEUTIC JURISPRUDENCE

      Therapeutic jurisprudence sees the law as a social force that can emotionally affect those involved in legal proceedings. (25) This field of study looks at how the interactions a person has with the legal system may later impact, either positively (therapeutically) or negatively (anti-therapeutically), his or her behavior and mental state. (26) The theory does not consider the therapeutic aspect to be more important than other consequences and goals of the legal system (e.g., punishment, justice, due process and deterrence); (27) however, it "does suggest that the law [has a] role as a potential therapeutic agent [which] should be recognized and systematically studied." (28)

      David B. Wexler (29) and Bruce J. Winick (30) developed the theory of therapeutic jurisprudence in the late 1980's. (31) Wexler and Winick believe the law is a "social force that produces behaviors and consequences." (32) Through this belief, they saw an opportunity to apply the law in a way that produces a therapeutic outcome for the parties involved. (33)

      While therapeutic jurisprudence does not promote paternalism, it does encourage the actors in the legal arena to participate in a dialogue to ensure understanding, (34) engage in active listening, and allow the defendant to play an active role. (35) The actors of the court can include anyone involved: the parties, judge and attorneys, jury members, and even clerks and bailiffs. (36) Theorists have identified three "core components" which have a role in producing a therapeutic outcome: voice, validation, and voluntary participation, otherwise known as "The Three V's." (37) Voice is when the parolee has "an opportunity to tell [his or her] story to a decision maker." (38)

      Validation occurs when the individual feels like those in authority, the judge, parole officer, or case manager, listened to and considered what he or she said. (39) Voluntary participation, while it does not require a completely optional choice for the parolee, is when the individual perceives the process as less coercive. (40) These concepts shape a participant's view of the legal situation and can either make him or her feel psychologically and emotionally worse, or better, after the situation has come to a conclusion. (41)

      This school of thought has a wide range of applicable settings, both in courtrooms and before and after the legal procedures, such as in hearings, trials, and sentencing, which occur within those courtrooms. (42) Although the theories and practices therapeutic jurisprudence promotes have long been integrated and explored in the problem-solving courts, many scholars are now seeing the potential benefits of applying these ideas to courts of general jurisdiction. (43) And, with the expansion of problem-solving courts, therapeutic jurisprudence practices are benefiting new areas of the legal system. (44)

   2. PROBLEM-SOLVING COURTS

      Around the same time therapeutic jurisprudence emerged, the first problem-solving court--drug court--was established in Dade County, Florida. (45) The drug court movement has now spread across the country, in every state, to almost 3,000 drug courts nationwide. (46) However, the drug court was not created in light of the therapeutic jurisprudence movement. (47) In fact, the two schools of thought had "been growing and evolving on parallel courses, yet independent of one another" for almost a decade before practitioners and scholars recognized their relationship. (48) Initially, the purpose of the drug court was to "address the needs of offenders with substance abuse problems," not provide a therapeutic aspect or make positive behavioral changes in defendants. (49) The drug court sought to find and remedy the root of the problem that led the offender to commit crimes. (50) In the drug court, the prosecutor and defense attorney work together with a judge to devise a personalized plan for each offender and maintain close supervision throughout the process. (51)

      The concepts utilized in the personalized plans can include anything from continuous drug screening, ankle monitoring, and curfews, to obtaining a General Education Diploma ("GED"), maintaining a steady job, and attending therapy sessions. (52) One major departure from a court of general jurisdiction is in drug court. In drug court, when offenders admit to a relapse or test positive for a controlled substance they are not automatically criminally convicted. (53) The judge has the ability to sentence the offender to incarceration, but she also has the discretion to hand down lesser sanctions such as an increase in therapy sessions, require additional drug screening, increase monitoring, and even make the offender write an essay on what he or she feels caused the relapse. (54)

      After the initial drug court was established, other problem-solving courts began to emerge. (55) Due to the revelation that the drug court concept and therapeutic jurisprudence are intertwined, not only have the problem-solving courts incorporated therapeutic jurisprudence, but some states have even codified it in their problem-solving court programs. (56) Some drug courts have produced staggeringly high success rates, (57) and the financial benefits can be significant. (58) However, the problem-solving court movement does not stop at drug courts. (59) Across the country there are now mental health courts, (60) juvenile courts, (61) domestic violence courts, (62) and reentry courts; (63) all of which can be viewed through a therapeutic jurisprudence lens. (64)

   3. REENTRY COURTS

      Reentry court is a unique type of problem-solving court, which focuses on the critical time period immediately following the release of an inmate who is then placed on parole and must reintegrate into society. (65) The idea began in the late 1990's and was initially implemented in 2000. (66) These courts incorporate practices of the typical problem-solving courts such as heightened levels of judicial supervision and interaction, drug treatment programs, and educational programs to obtain a GED or other specialized skill. (67) These programs are designed with the hopes that they will provide parolees an easier and more successful transition back into society, resulting in a decreased rate of recidivism. (68)

      One of the first reentry courts was established in 2001 in Manhattan's East Harlem neighborhood. (69) It was placed there in response to the high volume of parolees continuously returning to that neighborhood, (70) and its basic principle is to successfully reintegrate the parolee with society through a judge supervised program, similar to a problem-solving court model. (71) This court put the "drug court principles to the back end of the criminal justice system." (72) Since Harlem's reentry court began, many other jurisdictions across the country have followed suit, implementing reentry courts from...