More than the Rules – Therapeutic Jurisprudence and Legal Actors in New Zealand's Legal System

Application of Therapeutic Jurisprudence: A Different Approach to Punishment in Kenya

Strathmore Law Review ◽

10.52907/slr.v2i1.93 ◽

2017 ◽

Vol 2 (1) ◽

pp. 39-62

Author(s):

Eric Kariuki

Keyword(s):

Mental Health ◽

Legal System ◽

Critical Role ◽

The State ◽

Therapeutic Jurisprudence ◽

Law And Order ◽

Criminal Courts ◽

Role Of The State ◽

Primary Form

A critical role of the State is the regulation of crime by maintaining law and order and, at the same time, punishing crime. This paper seeks to address the retrogressive way crime is punished in Kenya. The author proposes that this can be rectified through the application of the doctrines of therapeutic jurisprudence (TJ), a theory first propounded by David Wexler when he tried to create a solution to the treatment of mental health victims in criminal courts. This paper takes his theories and applies them to the Kenyan context. In addressing these issues, this paper shall first look at the existing theories behind punishment, with focus on incarceration as the primary form of punishment, and highlight their flaws. It shall then look at TJ and explain how it can be infused into the Kenyan legal system. In doing so, the paper argues, the effectiveness of punishment can be greatly increased.

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Therapeutic Jurisprudence in International and Comparative Perspective

Oxford Research Encyclopedia of Criminology and Criminal Justice ◽

10.1093/acrefore/9780190264079.013.663 ◽

2020 ◽

Author(s):

Nigel Stobbs

Keyword(s):

United States ◽

Criminal Justice ◽

First Nations ◽

Legal System ◽

Due Process ◽

The United States ◽

Therapeutic Jurisprudence ◽

Offender Treatment ◽

The Law ◽

The Impact

Therapeutic jurisprudence (TJ) is a multidisciplinary approach to assessing the impact of the law itself on the emotional and psychological experiences of all those who have contact with the legal system. Variously described as a theory, a method, a lens, or a process of analysis, its distinguishing feature is to conceive of the law as a “therapeutic agent.” That agency can cause both therapeutic and antitherapeutic consequences. By investigating and assessing the social, professional, and political contexts in which laws are made and applied, TJ seeks to identify how unintentional harms are caused and suggests ways to remedy them. It also identifies opportunities to enhance psychological strengths and positive emotional experiences to improve legal outcomes. It has commonalities with positive criminology, restorative justice, procedural justice, and other less adversarial approaches within the criminal justice system. Since being founded by David Wexler and Bruce Winick in the 1980s as a project to improve the experiences of those subjected to mental disability law in the United States, the theory and methodology of TJ has evolved, and its influence has expanded to virtually every major legal system and jurisdiction. TJ was at the core of the operating philosophy of the problem-solving court movement, which now operates across nine countries. It is increasingly influential in new approaches to probation and offender treatment models in the United States, Europe, Australia, and New Zealand, and in influencing access to justice policies in India and Pakistan. It offers some common conceptual principles for the development of First Nations courts, tribunals, and dispute resolution programs seeking to eradicate systemic, monocultural bias in postcolonial criminal justice systems which tend to lead to intractable, carceral overrepresentation. TJ is currently undergoing a process of “mainstreaming” across disciplines and internationally. This involves encouraging lawyers and other criminal justice workers outside specialist court and diversion jurisdictions to adopt therapeutic outlooks and practices. So far there have been projects to mainstream TJ principles in police interviewing, risk assessment, diversion, criminal settlement conferences, bail, sentencing, conditional release from custody, and appeals. The sorts of reforms, innovations, and changes in mindsets suggested by TJ work has also sparked resistance and criticism. The latter ranges from constructive concerns about conceptual vagueness, risks of paternalism, and coercion to absolute ideological opposition on the grounds that TJ allegedly advocates for the complete abandonment of the adversarial system and strongarms defendants into surrendering their constitutional and due process rights.

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