Therapeutic Jurisprudence Starts with “Why” and Ends with “How”

By Jillianne Trotter Crescenzi, CFCC Student Fellow, Fall 2020

When people think about lawyers and the criminal justice system, they often think about catch phrases like “Law and Order” and “You must be good at arguing.” Our paternalistic society has been groomed to interpret law through a “right” and “wrong” lens, with nothing in between, and “order” must be brought upon all those who disrupt it. But what happens when circumstances are more complex and cannot be reduced to a “right” or “wrong” dichotomy?

I came to law school to solve hard problems — the types of problems that have gotten dusty on the shelf because they are multifaceted, and there isn’t one simple solution that will fix them all. Yet, these are the types of problems that keep happening. They pile so high that it becomes easier to assign them a label and send them to storage, rather than to address the underlying issues.

The Sayra and Neil Meyerhoff Center for Families, Children and the Courts (CFCC) approaches social and legal issues using a therapeutic jurisprudence (TJ) framework. TJ is a human-centered framework that analyzes the effect that laws actually have on people. TJ also evaluates the relationships between legal actors (e.g., the “accused,” judges, lawyers) and legal actions. When utilized, TJ helps to provide legal solutions that are more meaningful and result in greater efficiency. Importantly, in the criminal justice context, TJ does not adopt preconceived notions about the accused, but, rather, asks “why” did this happen and “how” can it be fixed? TJ is the way in which our legal system can provide true justice because it seeks to understand and account for the underlying issue. As noted author and public interest attorney Bryan Stevenson said in his book, Just Mercy: A Story of Justice and Redemption, “simply punishing the broken –walking away from them or hiding them from sight–only ensures that they remain broken and we do, too. There is no wholeness outside of our reciprocal humanity.”

The Power of “WHY?”

Do our legal decision-makers ask “why?” enough of the time? Further, do they ask “why” with the intention to leave enough space to understand any explanation given? The question “why?” should be step one in the process of considering how to address legal issues, on both an individual basis and a systemic basis.

“Why did you make that choice?”

“Why are children with disabilities more likely to be suspended than their non-disabled peers?”

“Why did this person not pay their bill?”

“Why is this law not effective?” or “Is this law actually effective?”

What happens when laws, policies, and practices are not good enough or are just plain bad? The response is often “that’s just the way it is.” But WHY is it that way, and does it have to be that way? Why is our legal system so quick to issue blanket penalties and fines to people who lack the means to pay? What good does that do? Why do we keep laws that do not result in their intended effects? Why are we so quick to close the book and say “it’s just not possible,” when there are so many possible ways to fix a problem if you are willing to look?

We do not have to look that far back to see the damage that some of our laws and policies have caused to large segments of our population. For instance, restrictive covenants and redlining prevented black and brown people from owning homes and building wealth; this didn’t just have an effect on the people directly discriminated against but also on their children, their children’s children, and so forth. Today, many laws and practices continue to exacerbate existing inequities, such as qualified immunity for police officers, which is in conflict with their systematic training to aggressively target black and brown people.

Law has the immeasurable power to repair harm, prevent harm, and provide justice. Law also has the power to cause harm, both directly and indirectly. As Fordham law professor and expert in family and poverty law Clare Huntington said, “(t)he real question is not the magnitude (. . .), but the end it serves.”[1]

But HOW?

How can our justice system possibly serve everyone if it must stop and ask “why” with each issue? Further, “the law’s the law” so what place does emotion and empathy have in it, if any? There is no single answer to these questions, but, rather, a framework that “initiates the question.”[2] TJ provides a framework that allows our justice system to address complex issues with the goal of providing more therapeutic outcomes. TJ’s co-founder, Professor David Wexler, views law as having either therapeutic or antitherapeutic qualities. Approaching legal solutions with that in mind, TJ starts with “why” and then proceeds with “how.” 

It is important to keep in mind that “how” to address a problem is a dynamic question; it changes by legal field, person, and circumstance. TJ in criminal law may look very different than TJ in family law. In family law, TJ can exist in what is called a Unified Family Court (UFC). In UFCs, the court weighs all the legal issues and circumstances a family is facing and attempts to mitigate the multitude of those diverse issues with personalized solutions. A UFC does not only  benefit the families it serves, but it helps all people and systems who interact with those families (e.g., education, healthcare, social services, children), including the professionals who work within the UFC.

In criminal law, a TJ approach may be achieved through restorative justice, such as restorative circles that incorporate “storytelling” in lieu of formal disciplinary meetings, or teen court instead of formal court proceedings. Restorative practices give everyone involved an opportunity to tell their story; their “why.” The solution, or the “how,” is developed after considering all viewpoints and working with the accused to remedy the injury.

Storytelling is an important component of restorative practices and TJ because it reduces preconceived notions by giving the accused the opportunity to fill in the gaps that were previously missing. It also gives the injured a chance to understand something they didn’t before. Restorative circles open a dialogue that helps all parties better understand each other and the consequences of their actions. While not specifically talking about restorative practices, Bryan Stevenson accurately describes an underlying value when he writes:

“Sometimes we’re fractured by the choices we make; sometimes we’re shattered by things we would never have chosen. But our brokenness is also the source of our common humanity, the basis for our shared search for comfort, meaning, and healing. Our shared vulnerability and imperfection nurtures and sustains our capacity for compassion.”

By asking “Why”, therapeutic jurisprudence leads to more informed decision-making on how best to achieve favorable results that can lead to fewer repeat offenses. More importantly, TJ seeks to provide outcomes that are empowering and have a long-lasting effect.

[1] Barbara A. Babb & Judith D. Moran, Caring for Families in Court: An Essential Approach to Family Justice at 37 (2019).

[2] Id. at 38.

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