Crime-prevention jurisprudence? A response to Andrews and Dowden.

• Author: Birgden, Astrid
• Position: D.A. Andrews and Craig Dowden, Canadian Journal of Criminology and Criminal Justice, vol. 49, p. 439, October 2007

Introduction

Recently, Andrews and Dowden (2007) published an article in which the risk-need-responsivity model was applied to risk assessment and justice processing regarding crime prevention and correctional rehabilitation. (1) The authors suggest that the risk--need-responsivity model can assist justice-, court-, and corrections agencies to apply a concept described as crime-prevention jurisprudence, where "a purpose of the courts is to apply sanctions in a manner consistent with legislation governing sentencing and to do so with attention to reducing offending through applications of RNR and an evidence-based, interdisciplinary understanding of the psychology of the criminal behavior of individuals" (441-442). To support this argument, the authors describe the personal, interpersonal, community-reinforcement perspective, on the one hand, and the risk-need-responsivity model, on the other (both classified as cognitive-social-learning theories) to show how these psychological theories apply to sentencing and the courts. In their introductory statements, Andrews and Dowden maintain that utilizing the risk-need-responsivity model to guide the legal and court systems in crime prevention could be "called an exercise in therapeutic jurisprudence ... but we are not comfortable with the clinical language of forensic mental health" (441; citations omitted). However, therapeutic jurisprudence is a conceptual framework (rather than a practice) developed by Professors Bruce Winick and David Wexler for the study of the role of the law and its impact upon the physical and psychological well-being of individuals who come in contact with the law (see Wexler 1990; 1995; Wexler and Winick 1996; Winick 1997; Winick and Wexler 2003).

This article will challenge three assumptions Andrews and Dowden make about therapeutic jurisprudence and the effective management of offenders to enhance community protection: (1) Therapeutic jurisprudence is therapy, (2) therapeutic jurisprudence fails to support reduced re-offending, and (3) crime-prevention jurisprudence is superior to therapeutic jurisprudence. In dismissing therapeutic jurisprudence, the authors only cite two articles published by psychologists, articles which are unrepresentative of the vast therapeutic-jurisprudence literature freely available in both Canada and internationally (see International Network). In my view, the article by Andrews and Dowden reflects an inadequate understanding of the legal concept of therapeutic jurisprudence and demonstrates a failure to consult the source articles on this burgeoning area of law.

Therapeutic jurisprudence defined

Before critically examining the three assumptions just mentioned, it is necessary to describe therapeutic jurisprudence. Professors Wexler and Winick have been publishing together in the area of therapeutic jurisprudence since 1975. Wexler describes the beginnings of therapeutic jurisprudence as follows:

I began working in the law and mental health field in the early 1970s, and wrote many different types of pieces: an empirical study of Arizona's civil commitment system, a conceptual critique of a psychosurgery case, a constitutional and behavioral look at token economies, an analysis of the links between the civil commitment and the criminal commitments systems, and a warning--which remains terribly important to the appropriate development of therapeutic jurisprudence--against subordinating justice concerns to therapeutic ones. (Wexler 1999a: 691)

While therapeutic jurisprudence initially developed out of analysis of mental-health law, three decades later, therapeutic jurisprudence analysis has moved well beyond mental-health law to utilize psychology, sociology, anthropology, political science, and economics to examine the law and

[t]hus the field has transcended mental health law, and therapeutic jurisprudence has now been applied to analyze issues in correctional law, criminal law, family law and juvenile law, sexual orientation law, disability law, health law, evidence law, personal injury law, labor arbitration law, contract and commercial law, workers' compensation law, probate law, and the legal profession. (Winick 1997: 201; see also Wexler 1999a)

The focus of therapeutic jurisprudence is the application of social science knowledge to assist the legal and court system. Therapeutic jurisprudence can best be defined as

the study of the role of the law as a therapeutic agent. It is an inter-disciplinary enterprise designed to produce scholarship that is particularly useful to law reform. Therapeutic jurisprudence proposes the exploration of ways in which, consistent with principles of justice ... the knowledge, theories, and insights of the mental health and related disciplines can help shape the development of the law ... legal rules, legal procedures, and the roles of legal actors (such as lawyers and judges) constitute social forces that, whether intended or not, often produce therapeutic or anti-therapeutic consequences. Therapeutic jurisprudence calls for the study of these consequences with the tools of the social sciences to identify them and ascertain whether the law's anti-therapeutic effects can be reduced, and its therapeutic effects enhanced. (Winick 1997: 185)

In other words, it is preferable for the law to have a positive effect, or at least neutral effect, rather than a negative effect (Wexler and Winick 1996). Therapeutic jurisprudence is part of "a growing comprehensive movement in the law that aims to establish more humane and psychologically optimal ways of handling legal matters" in a style that is "more humane, therapeutic, beneficial, humanistic, healing, restorative, curative, collaborative, and comprehensive" (Daicoff 2000: 465) in criminal law, civil law, and law inside and outside the courts. In addition, "the relationship of TJ to other modern jurisprudences, such as critical legal studies, the feminist movement, and critical race theory ... these three movements might be said to share the same goal as TJ-improving well-being" (Slobogin 1995: 199). These alternative approaches "optimise the psychological well-being of the individuals, relationships, and communities touched by each legal matter ... [and] acknowledge the importance of concerns beyond simply the strict legal rights, duties, and obligations of the parties" (Daicoff 2000: 470).

While traditional courts generally do not consider the causes of offending, problem-solving courts do. Problem-solving courts are an example of therapeutic jurisprudence in practice and focus on achieving positive case outcomes (notably for victims, offenders, and the community through reduced re-offending and healthier communities); re-engineering systems to address the underlying causes of offending (such as drug use, mental illness, and child neglect); relying on active judicial authority to engage behaviour change; developing non-traditional roles where legal and mental health professionals work together as a team; and supporting collaboration between government and non-government agencies (Berman and Feinblatt 2001). Therapeutic jurisprudence is increasingly being endorsed as an alternative to traditional court processes. Indeed, a conference of United States chief justices and court administrators in 2000 approved therapeutic jurisprudence principles as underpinning specialist courts (Winick and Wexler 2003). Of interest to this article is that therapeutic jurisprudence is concerned with reduced re-offending, is concerned with victims, and has been applied within the Canadian context.

In terms of reduced re-offending, therapeutic jurisprudence is concerned with the therapeutic and anti-therapeutic impacts of the law. The following examples consider the role of the law in the sentencing process regarding assessing risk and engaging behaviour change. Winick (2003a) considered sex-offender risk and recommended that dynamic risk factors be addressed and that "sex offender registration and community notification laws ... be restructured to reflect a risk management approach for sex offenders discharged to the community" (227). Wexler (2000) suggested that the relapse-prevention aspect of offender rehabilitation be integrated with the law through the judge's questioning the juvenile defendant about his or her relapse-prevention plan. Wexler (2001) later relied on social science literature about compliance, relapse prevention, and desistance to argue that courts should provide positive reinforcement, graduation ceremonies, and so on to encourage change. Ali these strategies support the risk-need-responsivity model. Furthermore, Wexler (2006) recommended the use of allocution statements (the defendant's providing written answers to a list of questions presented to him/her by the defence lawyer prior to the trial) to educate the defendant regarding the sentencing factors, to wholeheartedly solicit the defendant's voice, and to induce an optimistic and forward-looking orientation by focusing on the defendant's strengths, goals, and educational, vocational and treatment needs as such statements "educate the defendant regarding sentencing factors," "solicit(s) the defendant's voice" as part of the due-process strategy, and provide an "optimistic and forward-looking" approach based on the defendant's strengths and capabilities (127). Finally, a detailed example of therapeutic jurisprudence and sex-offender rehabilitation was provided by Edwards and Hensley (2001: 657), where the authors proposed a treatment track model that defers sentencing where there is early cooperation, encourages guilty pleas that reflect the offence, and supports participation in sex-offender treatment. These therapeutic jurisprudence concerns for reduced re-offending are no different from those expressed by crime-prevention jurisprudence.

In terms of victim issues, therapeutic jurisprudence is concerned with the therapeutic and anti-therapeutic impacts of the law on...