Bruce J. Winick

The jurisprudence of therapeutic jurisprudence.

In less than a decade, therapeutic jurisprudence, which began as a scholarly approach to mental health law, has emerged as a mental health approach to law generally. In this essay, one of the founders of this new field offers a further elaboration of the theory of therapeutic jurisprudence and a response to the key issues raised by commentators and critics. This essay discusses the relationship between therapeutic jurisprudence and other schools of jurisprudence and analyzes the approachs normative focus and its limits. It also addresses how “therapeutic” should be defined, whether the approach is paternalistic, whether the limits of social science methodology doom the enterprise, how therapeutic and other potentially conflicting values can be reconciled, and how the law should respond when such conflicts persist. Finally, the essay charts the path of therapeutic jurisprudence and analyzes new developments in the field.

The side effects of incompetency labeling and the implications for mental health law.

In addition to labeling people as mentally ill, the law often labels them as incompetent to exercise certain rights or to play particular roles. Indeed, under the broad dicta of Zinermon v. Burch, incompetency labeling may increase dramatically. This article uses principles of social and cognitive psychology to examine the effects of incompetency labeling. Such labeling is shown to produce potentially serious adverse effects. It often alters the way others view and react to the labeled individual and affects his or her self-esteem and self-concept in ways that may inhibit performance, diminish motivation, and depress mood. After analyzing those negative side effects of incompetency labeling, the article examines the implications of these findings for mental health law and makes a number of proposals for changing the law in order to avoid or minimize these adverse effects.

A Dialogue on Mental Health Courts.

In this Foreword, the co-guest editors of this symposium on mental health courts introduce the topic by defining the concept, describing the reasons for its inception, and noting the controversies it has provoked. It then summarizes the articles in the symposium. Finally, the editors, who disagree about the value, effectiveness, and consequences of this new model, air their differences in a dialogue designed to delineate the issues and educate the reader.

The right to refuse mental health treatment: A therapeutic jurisprudence analysis

The controversy concerning the recognition and definition of a right to refuse mental health treatment has largely ignored the question of whether such recognition would be therapeutically beneficial or detrimental to the patient. Would such recognition lead to refusal of needed treatment so that patients will “rot with their rights on,” as some have suggested ?’ Will allowing offenders the choice whether to participate in correctional rehabilitation programs increase recidivism? Will patients forced to accept mental health treatment over objection improve and come, in time, to thank their doctor, retrospectively approving beneficial treatment they never would have accepted voluntarily?2 On the

Outpatient commitment: a therapeutic jurisprudence analysis.

This article analyzes the legal and therapeutic jurisprudence considerations raised by outpatient commitment. Although older forms of outpatient commitment have both legal and therapeutic advantages, preventive outpatient commitment raises serious legal problems and potential antitherapeutic consequences that may outweigh its claimed therapeutic value. As a result, alternatives are proposed, including wider availability of community treatment and outreach and case management services, assertive community treatment, police and mental health court diversion programs, and creative uses of advanced directive instruments and behavioral contracting. Proposals also are made for how preventive outpatient commitment can be applied more therapeutically, including hearings that accord patients a sense of procedural justice and techniques designed to motivate individuals facing such hearings to agree to accept treatment voluntarily.

A Testable Theory of Problem Solving Courts: Avoiding Past Empirical and Legal Failures

Recent years have seen a proliferation of problem solving courts designed to rehabilitate certain classes of offenders and thereby resolve the underlying problems that led to their court involvement in the first place. Some commentators have reacted positively to these courts, considering them an extension of the philosophy and logic of Therapeutic Jurisprudence, but others show concern that the discourse surrounding these specialty courts has not examined their process or outcomes critically enough. This paper examines that criticism from historical and social scientific perspectives. The analysis culminates in a model that describes how offenders are likely to respond to the process as they engage in problem solving court programs and the ways in which those courts might impact subsequent offender conduct. This Therapeutic Jurisprudence model of problem solving courts draws heavily on social cognitive psychology and more specifically on theories of procedural justice, motivation, and anticipated emotion to offer an explanation of how offenders respond to these programs. We offer this model as a lens through which social scientists can begin to address the concern that there is not enough critical analysis of the process and outcome of these courts. Applying this model to specialty courts constitutes an important step in critically examining the contribution of problem solving courts.

Incompetency to Stand Trial

The incompetency doctrine has common law origins, going back at least to mid-seventeenth century England (Group for the Advancement of Psychiatry 1974, pp. 912–915). Blackstone wrote that a defendant who became “mad” after the commission of an offense should not be arraigned “because he is not able to plead... with the advice and caution that he ought” and should not be tried, for “how can he make his defense?” (Blackstone 1783, p. 94; see also Hale 1736, pp. 34–35). Some have traced the common law prohibition on trying the incompetent defendant to the ban against trials in absentia (Foote 1960, p. 834; see, e.g., Frith’s Case 1790; Kinloch’s Case 1746). Others have traced the origins of the doctrine to the difficulties resulting when a defendant frustrated the ritual of the English common law trial by remaining mute instead of pleading to the charge. Without such a plea, the trial could not go forward. In such cases the English court was obliged to determine whether the defendant was “mute by visitation of God” or “mute of malice.” If “mute of malice,” the defendant was subjected to a form of medieval torture—the peine forte et dure—in which increasingly heavier weights were placed upon his chest in an effort to compel him to plead. The category “mute by visitation of God,” the members of whom were spared this painful ritual, originally encompassed the “deaf and dumb,” but gradually was expanded to include “lunatics.” At the discretion of the Chancellor, a jury could be impaneled to conduct an inquest into the defendant’s competency (Group for the Advancement of Psychiatry 1974, pp. 887–88, 912–13; Slovenko 1977, p. 168).

Problem Solving Courts: Therapeutic Jurisprudence in Practice

A transformation in the judiciary has occurred over the past 20 years. The traditional role of the courts has been to adjudicate disputed issues of fact in civil and criminal cases. Traditionally, judges were neutral arbiters considering conflicting evidence and rendering a decision based on the law and the facts. However, because a variety of social and psychological problems finding their way to the courts, a metamorphosis has occurred in the judicial role. Indeed, these courts, collectively often referred to as “problem-solving courts,” have different jurisdiction than traditional courts and separate judges who preside in them. The judicial teams in these courts address social problems such as drug addiction, alcoholism, domestic violence, untreated mental illness, and prisoner reentry into society. This chapter discusses therapeutic jurisprudence as the underlying philosophy that directs and guides these new courts. It discusses the changing roles of judges, attorneys, and clients who make use of the problem-solving court model highlighting the gains that the movement has made and comparing the gains to the new challenges that have arisen as the result of the altered roles of the legal actors in these courts. Problem-solving courts represent a newly broadened conception of the role of the courts, one that is fully consistent with the basic concept of therapeutic jurisprudence. It is a noble undertaking to close the revolving door to certain kinds of repetitive offenses by providing judicially supervised and monitored treatment to those motivated to undertake it. To perform this new judicial role, judges need to develop and improve their interpersonal, psychological, and social work skills. The chapter ends with a discussion of how therapeutic jurisprudence can add to the training and development of legal professionals who can make a difference in the problem-solving courts of the future.

Sex Offender Reentry Courts

Abstract: Recently enacted legal strategies to protect society from dangerous sex offenders generally use two very different approaches: Long‐term incapacitation or outright release. The first strategy relies on harsh criminal sentences or indeterminate sexual predator commitment laws. The second relies primarily on registration and notification laws. Both strategies rely on prediction models of dangerousness. Authorities determine at a single moment the likelihood that an offender will sexually ‘recidivate’ and then choose the appropriate type of control for an extended period. This paper reviews the problems of predicting sexual recidivism in the context of both strategies. It then proposes special sex offender reentry courts to manage the risk that sexual offenders will reoffend. Risk management allows decision makers to adjust calculations of individual risk on an ongoing basis in light of new information and to adjust the level of control. Drawing on Therapeutic Jurisprudence—a belief that legal rules, procedures, and legal roles can have positive or negative psychological impact on participants in the legal system—these courts can impose, and then adjust control over sex ofenders in the community. In a sex offender reentry court, the judge is a member of an interdisciplinary team that uses a community containment approach; the offender, as a condition for release, enters into a behavioral contract to engage in treatment and submit to periodic polygraph testing. This therapeutic jurisprudence approach creates incentives for offenders to change their behavior and attitudes, thereby reducing their recidivism risk and earning more freedom. It can also monitor compliance and manage risk more effectively.

Foreword: planning for the future through advance directive instruments.

The Foreword traces the development of advance directive instruments and discusses their legal enforceability and many benefits. Despite their advantages, advance directives remain underused and are frequently ignored by service providers. The contributors to this special issue discuss why this is so and offer and debate a variety of remedial proposals. They analyze the various legal, clinical, ethical, and practical issues presented by the use of advance directives for health and mental health care and examine new directions in their application. The Foreword describes the organization of this special issue, summarizes the articles it contains, and comments on their significance.