New Wine in New Bottles: The Need to Sketch a Therapeutic Jurisprudence 'Code' of Proposed Criminal Processes and Practices

Abstract

La version espanola de este articulo se puede encontrar en: http://ssrn.com/abstract=2466124.This essay forms the basis of a presentation at Balliol College, Oxford University, at the International Symposium on Therapeutic Jurisprudence and Problem-Solving Justice.Although therapeutic jurisprudence (TJ) actually originated outside the context of problem-solving courts, TJ in practice remains closely associated with such courts, probably because their structure invites the use of a style of judging endorsed by the TJ literature. Recently, however, for economic and other reasons, there has been an interest in “mainstreaming” TJ and related approaches to judging. For that to occur, we need to examine the governing “legal landscapes” (legal rules and legal procedures) in mainstream criminal courts to see how “TJ-friendly “ — or unfriendly — they may be. We may conceptualize the principles of TJ judging as a kind of “liquid,” and can look at the operative legal structures as “bottles,” An analysis of varying legal provisions will indicate how much of the TJ liquid can be poured into the assorted bottles. This examination can lead to proposing a TJ “code” of proposed criminal processes, together with a commentary explaining how, under the given suggested structures, the law can be administered to maximize the use of TJ judging principles. In the present essay, I concentrate mostly (but not exclusively) on US law, although the coverage is quite spotty, and a state-by-state TJ look at relevant criminal processes is very much in order. Moreover, as TJ is now quite international in scope, my hope is that the exercise might be undertaken as well in other jurisdictions, and that the result may be the creation of a rich body of TJ thinking in a comparative law context.