Therapeutic Jurisprudence, Neo-Rehabilitationism, and Judicial Collectivism: The Least Dangerous Branch Becomes The Most Dangerous
2002; Fordham University School of Law; Volume: 29; Issue: 5 Linguagem: Inglês
ISSN
0199-4646
Autores Tópico(s)Legal Education and Practice Innovations
ResumoINTRODUCTION The movement that calls itself (1) is both ineffective and dangerous, in almost the same way that its predecessor--the rehabilitative movement that became popular in the 1930s and was abandoned in the 1970s--was both ineffective and dangerous. Drug use, shoplifting, and graffiti are no more treatable today than juvenile delinquency was treatable in the 1930s. The renewed fiction that complex human behaviors can be dealt with as if they are simple diseases gives the judicial branch the same kind of unchecked and ineffective powers that led to the abandonment of the rehabilitative ideal in the 1970s. In fact, this new strain of rehabilitationism has produced a judiciary more intrusive, more institutionally insensitive and therefore more dangerous than the critics of the rehabilitative ideal could ever have imagined. I. THE REAL FACE OF THERAPEUTIC JURISPRUDENCE In a drug court in Washington, D.C., the judge roams around the courtroom like a daytime TV talk show host, complete with microphone in hand. (2) Her drug treatment methods include showing movies to the predominantly African-American defendants, including a movie called White Man's Birth. (3) She often begins her drug court sessions by talking to the clients (4) about the movies, and then focusing the discussion on topics like racism, justice, and equality. (5) The judge explains her cinemagraphic approach to jurisprudence this way: Obviously they need to talk about their own problems and what leads to them, but also think that it's good to have distractions in life. I've found out that if there are periods of your life when you are unhappy, sometimes going out to see an interesting movie or going out with a friend and talking about something else, or going to the gym to work out, these kinds of things can help you through a bad day. (6) After the film discussion, the session begins in earnest. Defendants who are not doing well are scolded and sometimes told stories, often apocryphal, about the fates that have befallen other uncooperative defendants or the drug court judge's own friends and family members. (7) Some defendants are jailed for short periods of time and/or regressed to stricter treatment regimens, and eventually some are sentenced to prison. (8) The audience applauds defendants who are doing well, and the judge hands out mugs and pens to the compliant. The judge regularly gives motivational speeches that are part mantra and part pep rally. Here is a typical example: Judge: Where is Mr. Stevens? Mr. Stevens is moving right along too. Right? Stevens: Yep. Judge: How come? How come it is going so great? Stevens: made a choice. Judge: You made a choice. Why did you do that? Why did you make that choice? What helped you to make up your mind to do it? Stevens: There had to be a better way than the way was doing it. Judge: What was wrong with the way you were living? What didn't you like about it? Stevens: It was wild. Judge: It was wild, like too dangerous? Is that what you mean by wild? Stevens: Dangerous. Judge: Too dangerous, for you personally, like a bad roller coaster ride. So, what do you think? Is this new life boring? Stevens: No, not at all. Judge: Not at all. What do you like about the new life? Stevens: like it better than the old. Judge: Even though the old one was wild, the wild was kind of not a good wild. You like this way. Stevens: love it. Judge: You love it. Well, we're glad that you love it. We're very proud of you. In addition to your certificate, you're getting a pen which says, I made it to level four, almost out the door. (9) This is the real face of therapeutic jurisprudence. It is not a caricature. …
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