Crime-Prevention Jurisprudence? A Response to Andrews and Dowden
Birgden, Astrid, Canadian Journal of Criminology and Criminal Justice
Recently, Andrews and Dowden (2007) published an article in which the risk-need-responsivity model was applied to risk assessment and justice processing regarding crime prevention and correctional rehabilitation. (1) The authors suggest that the risk--need-responsivity model can assist justice-, court-, and corrections agencies to apply a concept described as crime-prevention jurisprudence, where "a purpose of the courts is to apply sanctions in a manner consistent with legislation governing sentencing and to do so with attention to reducing offending through applications of RNR and an evidence-based, interdisciplinary understanding of the psychology of the criminal behavior of individuals" (441-442). To support this argument, the authors describe the personal, interpersonal, community-reinforcement perspective, on the one hand, and the risk-need-responsivity model, on the other (both classified as cognitive-social-learning theories) to show how these psychological theories apply to sentencing and the courts. In their introductory statements, Andrews and Dowden maintain that utilizing the risk-need-responsivity model to guide the legal and court systems in crime prevention could be "called an exercise in therapeutic jurisprudence ... but we are not comfortable with the clinical language of forensic mental health" (441; citations omitted). However, therapeutic jurisprudence is a conceptual framework (rather than a practice) developed by Professors Bruce Winick and David Wexler for the study of the role of the law and its impact upon the physical and psychological well-being of individuals who come in contact with the law (see Wexler 1990; 1995; Wexler and Winick 1996; Winick 1997; Winick and Wexler 2003).
This article will challenge three assumptions Andrews and Dowden make about therapeutic jurisprudence and the effective management of offenders to enhance community protection: (1) Therapeutic jurisprudence is therapy, (2) therapeutic jurisprudence fails to support reduced re-offending, and (3) crime-prevention jurisprudence is superior to therapeutic jurisprudence. In dismissing therapeutic jurisprudence, the authors only cite two articles published by psychologists, articles which are unrepresentative of the vast therapeutic-jurisprudence literature freely available in both Canada and internationally (see International Network). In my view, the article by Andrews and Dowden reflects an inadequate understanding of the legal concept of therapeutic jurisprudence and demonstrates a failure to consult the source articles on this burgeoning area of law.
Therapeutic jurisprudence defined
Before critically examining the three assumptions just mentioned, it is necessary to describe therapeutic jurisprudence. Professors Wexler and Winick have been publishing together in the area of therapeutic jurisprudence since 1975. Wexler describes the beginnings of therapeutic jurisprudence as follows:
I began working in the law and mental health field in the early 1970s, and wrote many different types of pieces: an empirical study of Arizona's civil commitment system, a conceptual critique of a psychosurgery case, a constitutional and behavioral look at token economies, an analysis of the links between the civil commitment and the criminal commitments systems, and a warning--which remains terribly important to the appropriate development of therapeutic jurisprudence--against subordinating justice concerns to therapeutic ones. (Wexler 1999a: 691)
While therapeutic jurisprudence initially developed out of analysis of mental-health law, three decades later, therapeutic jurisprudence analysis has moved well beyond mental-health law to utilize psychology, sociology, anthropology, political science, and economics to examine the law and
[t]hus the field has transcended mental health law, and therapeutic jurisprudence has now been applied to analyze issues in correctional law, criminal law, family law and juvenile law, sexual orientation law, disability law, health law, evidence law, personal injury law, labor arbitration law, contract and commercial law, workers' compensation law, probate law, and the legal profession. …