Introduction

Therapeutic jurisprudence is a perspective that regards the institution of justice as a social force that is capable of producing both therapeutic and anti-therapeutic outcomes. Given this recognition of the harm that may occur as the result of a legal intervention, an emphasis is placed on empirically based scholarship to determine the impact of the judicial process on the individuals before it. For example, what is the deterrence outcome of experimental or traditional legal procedures? The progressive aspect of this philosophy is in its problem-solving rather than punishment-for-punishment’s-sake orientation. Accordingly, this philosophy opens the door to less coercive forms of justice than those currently applied to persons in trouble with the law. Moreover, its inherent focus on the value of rehabilitation (see Gough, Chapter Four, this volume) can be viewed as more consistent with reparative than with retributive forms of justice.

As both a theoretical framework and a pragmatic approach, therapeutic jurisprudence seeks to discover the potential role that adjudication might play as a therapeutic agent in helping people in trouble with the law become productive citizens. Uniquely, this form of jurisprudence looks to courts as problem-solving mechanisms and as laboratories for research on treatment effectiveness ‘insofar as therapeutic jurisprudence is especially interested in which legal arrangements lead to successful therapeutic outcomes and why’ (Winick and Wexler, 2003a, pp 105–6, emphasis in original).

From this perspective, this chapter focuses on two judicial innovations: the drug treatment court and the mental health court. These criminal justice developments arose independently of the teachings of therapeutic jurisprudence but are often singled out in the research literature as prime applications of the principles of therapeutic jurisprudence. We begin this chapter with a discussion of the principles of therapeutic jurisprudence in the abstract. Then we discuss the principles of therapeutic jurisprudence within the US as compared to the British cultural context. Detailed descriptions of the operations of the US judicial treatment interventions – drug courts and mental health courts – follow.

We are talking in this chapter about court-mandated treatment, or therapy that is provided under intensive supervision and under dire threat – the threat of incarceration.