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California State University, Dominguez Hills
University of Wisconsin, Parkside
Created: March 2, 2006
Latest Update: March 2, 2006
Restorative justice is an approach to restoring the community to a sense of justice and fairness in which both the person who has harmed an other and the vicitm of harm both feel that they have been heard in good faith and that they will be accepted fully into the community and helped by the community to get back to normalcy. To do that we need to understand the one who offended, the victim, the community and the normative aspects of its culture. In other words, in a community where women are prohibited from showing themselves to strangers, the community norms will be very different from ones in which young people are encouraged to date and mix without restraint. And there are lots of normative rules in between, for lots of different cultures.
That means we need to listen in good faith to all parties, and then work out understandings of responsibility and respect and clear communication through which the community can let the offender know that some breaking of rules will not be tolerated by the community collectively.
Therapeutic jurisprudence is a similar approach on a much grander scale. In therapeutic jurisprudence the criminal justice system and its players are incorporated into a similar process. If the system, from crimiinal justice enforcement on down stands firmly together in listening in good faith to all parties, insisting upon standards of normative behavior, and works together as a community, we might be able to get back to governance discourse and real transformation on some of the major social and economic problems we face today.
Definition of restorative justice:"Restorative justice philosophy differs from retributive justice primarily in how harm and accountability are conceptualized.From the restorative justice perspective,“Crime is a violation of people and relationships.It creates obligations to make things right.Justice involves the victims,the offender,and the community in a search for solutions which [sic ] promote repair,,reconciliation,and reassurance ” ((Zehr,1990,p.181)."
From p. 5, Disposition and Treatment of Juvenile Sex Offenders.pdf.
Courts, especially juvenile courts, often fail to make victims feel that they have been given justice:
"Strang (2002) described the experiences of victims of juvenile offenders throughout Western criminal justice systems as consisting of lack of attention to questions of restitution and repair of the harm, neglect of emotional reactions such as fear and anger, routine lack of communication about court dates and the progress of the case, exclusion from decision making, and no participating role. Juvenile justice systems do little to address the stigmatizing impact on families when a member is labeled a sex offender and the potential of families to resolve problems is largely ignored."
From p. 5, Disposition and Treatment of Juvenile Sex Offenders.pdf.
Concern for the underlying behavior (unstated assumptions) that led to the offense originally:"The conference participants then turn their attention to developing a plan to make reparations to the victim, rehabilitate the offender, and undertake steps that will strengthen community bonds and make amends for the harm caused to the fabric of relationships."
From p. 13, Disposition and Treatment of Juvenile Sex Offenders.pdf.
- David Wexler suggests that "[a]n example of a legal rule that could be examined from a therapeutic jurisprudence perspective is the 'Don't Ask, Don't Tell' provision that bars military service for one who acknowledges being gay or bisexual." International Network on therapeutic Jurisprudence, TJ: An Overview.
He then asks: "Therapeutic jurisprudence is a framework for asking questions and for raising certain questions that might otherwise go unaddressed. The answers to those questions are often empirical. Is Kay Kavanaugh right in suggesting that the rule has this chilling effect on other conversational topics?" What do you think?
Consider what Kay Kavanaugh says:
"if someone is gay in the military and cannot talk about that, then that person may also be afraid to talk about many other things as well because those other things are likely to raise the question of the legally prohibited topic. . . So where you went on vacation and with whom may be things you're not comfortable talking about because this topic could raise the question of whether you're gay, and that is the prohibited conversational topic . . .
Therefore, the author of the "Don't Ask, Don't Tell" article, Kay Kavanagh, suggested that the law, in practice, may cause great isolation, marginality, and superficiality in social relations for a gay person in the military, perhaps above and beyond what was anticipated when this provision was drafted. . . . Perhaps it was drafted with the thought that one's sexual life is personal, and that it makes sense, therefore, for us not to ask about it and for people not to talk about it. . . . It was perhaps based on the assumption that one's sexual life was a very isolated topic that doesn't spill over into other aspects of social life. . . . Kay Kavanagh's piece suggests, and I think with very good reason, that it does spill over into other areas; therefore, this is a richer look at that law and its implications."
- So therapeutic jusisprudence helps make us aware of questions we might otherwise not think to ask. But then it asks a second question. What is that second question?
Consider: "Secondly, even if true empirically, there remains the normative question: what, if anything, should we do about that rule?" From International Network on therapeutic Jurisprudence, TJ: An Overview. Kavanaugh's argument about the "Don't Ask, Don't Tell" policy suggests that it has a much greater impact than we might at first think. So the fact of that impact might be "true empirically." The second question, a "normative" question, is about how the asking or telling would fit into our normative structure. Would it be "right" or "wrong" in our normative expectations to ask that we do something about the rule, to make it's impact less harmful for the person who must observe the rule?
Wexler says that the normative "should" question is the one we might never get to, if a therapeutic approach hadn't made us aware of the questions of emotional impact. The questions of emotional and economic and social impact can be answered within the limits of behavioral methodology as empirical questions. Then we stand a better chance of making better choices when it comes to the normative "should" questions.
"Should we do it? Is it going to be too time consuming? Do judges have the time to do this? That's the normative question that gets raised by all of this. But I suggest that we're now asking questions that otherwise we might not be asking at all.
"Another way in which therapeutic jurisprudence has tried to use information from behavioral science relates to cognitive distortions of offenders, especially sex offenders. . . . Therapists suggest that in order to take a first step in the treatment of offenders, one needs to tackle offender denial or minimization. . . . The offenders also need to take responsibility and to be accountable. . . . They need to overcome the cognitive distortions of denial and minimization, such as "I didn't do it," or "I did it but it wasn't my idea," and "I did it and it was my idea but it wasn't for sexual gratification." . . .
"The next example I am going to use will tie into Dr. Miller's discussion about rights and responsibilities. (82) I have been interested in some recent literature that relates to relapse prevention planning principles and how they may be brought into the law.
"For years there was a real pessimism in rehabilitation and rehabilitative efforts. (83) Starting in the 1970s, when Martinson suggested that nothing really worked, there was a long period of time when people were giving up on rehabilitation. (84)
"More recently, it looks like there are certain kinds of rehabilitative programs and packages, particularly the cognitive/behavioral variety, that look rather promising. (85) One type of these cognitive behavioral treatments encourages offenders to think through the chain of events that lead to criminality and then tries to get the offenders to stop and think in advance. (86) This will enable an offender to figure out two things: (1) what are the high risk situations, in my case, for criminality or juvenile delinquency; and (2) how can the high risk situations be avoided, or how can the situations be coped with if they arise? (87)
"These situations may be things such as realizing you are very much at risk on Friday nights after having partied with such and such person. The offender may decide that he or she shouldn't go out Friday nights. This determination is a way of avoiding high risk behaviors. (88) Instead of going out on Friday night with Joe and getting into trouble, the offender may choose to stay home. But what happens the next night when Joe calls or what happens when Joe knocks on the offender's door?
"Therapists have developed approaches of working with these issues, and of having offenders prepare relapse prevention plans. (89) There are also certain programs, like "reasoning and rehabilitation" type programs, that teach offenders cognitive self change, to stop and think and figure out consequences, to anticipate high risk situations, and to learn to avoid and cope with them. (90)
"These programs seem to be reasonably successful. (91) One of the issues that I am interested in now, from a therapeutic jurisprudence standpoint, is how this might be brought into the law. In one obvious sense, these problem-solving, reasoning and rehabilitation type of programs can be made widely available in correctional and community settings. (92) A way of linking them even more to the law, of course, would be to say that as a condition of probation or parole, one might have to attend or complete one of these courses. (93)
"A more subtle way of thinking about this in therapeutic jurisprudence terms, however, is to ask how reasoning and rehabilitation can be made part of the legal process itself. (94) The suggestion here is that if a judge or parole board becomes familiar with these techniques and is about to consider someone for probation, the judge might say, "I'm going to consider you but I want you to come up with a type of preliminary plan that we will use as a basis of discussion. I want you to figure out why I should grant you probation and why I should be comfortable that you're going to succeed. In order for me to feel comfortable, I need to know what you regard to be high risk situations and how you're going to avoid them or cope with them." (95)
"If that approach is followed, courts will be promoting cognitive self-charge as part and parcel of the sentencing process itself. (96) The process may operate this way: "I realize I mess up on Friday nights; therefore, I propose that I will stay home Friday nights." Suddenly, it is not a judge imposing something on you. It's something you are coming up with so you should think it is fair. You have a voice in it, and presumably your compliance with this condition will also be better."
From International Network on therapeutic Jurisprudence, TJ: An Overview. At the end of the file.
- Training in Rehabilitation for Juvenile Offenders UC Davis Extension. Primarily a training ad. But useful info. Take a look."Expectations of the juvenile justice system are rising amid increasing public concerns about juvenile crime and violence. Probation officers face pressure to meet conflicting demands for incarceration and rehabilitation. Juvenile probation departments are now responsible for meeting the needs of minors from dysfunctional families and with multiple needs-including educational deficits, psychiatric disorders and substance abuse problems."
- Disposition and Treatment of Juvenile Sex Offenders.pdf PDF file. You'll need Acrobat Reader. Article prepared for publication on a restorative justice approach to juvenile sex offenders. Emphasis is placed initially on the victim's situatedness and on restoring a sense of justice and security to the victim. As we speak of the role of juvenile justice we need to look at the needs of the offenders and seek curative ways to reform their behavior, as the authors suggest in the second half of the paragraph below (from the abstract):"When cases are referred to therapeutic options,multiple system therapies have the strongest empirical success record.However,these approaches also pay scant attention to healing the impact of crime on victims and family members.Incorporating restorative justice principles could strengthen sex offender treatment by involving the direct victims,fostering shared emotion,acknowledgement of wrongdoing,apology,and reparation. These practices enhance the likelihood that victims are satisfied they have received fair justice,strengthen social control within the community,reduce recidivism,and enhance the benefits to offenders by promoting cognitive reframing,empathy, restoration of self-esteem,and community re-integration."
- Therapeutic Jurisprudence Defined Website of Bruce J. Winick. Definition which basically doesn't say anything. jeanne"Therapeutic jurisprudence is the study of law's healing potential. An interdisciplinary approach to legal scholarship that has a law reform agenda, therapeutic jurisprudence seeks to assess the therapeutic and counter-therapeutic consequences of law and how it is applied and to effect legal change designed to increase the former and diminish the latter."
But if you hunt around on the site you'll find that he calls "civic commitment" a thrapeutic jurisprudential model. Hmmm. Not one that goes very far in solving the real problems, I should think. But thats just my opinion. jeanne
- Preventing Sexual Violence: How Society Should Cope With Sex Offenders John Q. La Fond, JD. On the American Psychological Association Website. Co-edited with Winick, at least in one version. The site inexplicably refrains from giving any useful information on what the book recommends or why.
- International Network on Therapeutic Jurisprudence David B. Wexler, Director. Works with Winick, above. Gives a reasonable definition of therapeutic jurisprudence. jeanne" . . . therapeutic jurisprudence is a perspective that regards the law as a social force that produces behaviors and consequences. . . therapeutic jurisprudence does not itself suggest that therapeutic goals should trump other ones. . . . It does not support paternalism, coercion, and so on. . . . It is simply a way of looking at the law in a richer way, and then bringing to the table some of these areas and issues that previously have gone unnoticed. . . . Therapeutic jurisprudence simply suggests that we think about these issues and see if they can be factored into our law-making, lawyering, or judging."
This link, if you scroll down, will give you some conceptual linkage to the "Don't Ask, Don't Tell" army policy. jeanne