Therapeutic Jurisprudence, Procedural Justice And Labeling Theory – A Continuum Of Fairness

Few would argue that the judge is the most influential person in the courtroom. From increasing positive drug treatment court outcomes to choosing a fair and representative jury, judges can not only affect the actual outcomes of legal disputes but they overwhelming set the stage for the perception of fairness and justice.

Judge Peggy Hora (Ret.) Judge Lisa Tremewan and Professor David Wexler

Therapeutic Jurisprudence

The term Therapeutic Jurisprudence (TJ) was first used by Professor David Wexler of the University of Arizona Rogers College of Law and University of Puerto Rico School of Law in a paper delivered to the National Institute of Mental Health in 1987. Professor Bruce Winick, (who passed in 2010) of the University of Miami School of Law, originated the concept with Wexler and they advocated seeing the law through a new lens. TJ, says the website, “concentrates on the law’s impact on emotional life and psychological well-being.”

TJ’s mission is to study the extent to which substantive rules, legal procedures, and the role of legal actors (lawyers and judges among others) produce therapeutic or antitherapeutic consequences for individuals involved in the legal process. Once noted, the goal is to enhance therapeutic outcomes and reduce antitherapeutic ones. It requires an ethic of care and an expansion of the usual roles of attorneys and judges to include the use of heightened interpersonal skills.

TJ has been clear from the beginning, however, that dearly held principles such as equal protection and due process are not sublimated for therapeutic reasons. That is, due process is never “trumped” by TJ.

Ultimately, TJ’s question is: Can we enhance the likelihood of desired outcomes and compliance with judicial orders by applying what we know about behavior to the way we do business in court?

There is a TJ in the Mainstream blog.

Procedural Justice looks at how judgements about justice or injustice shapes the legitimacy of the courts and its systems.

Procedural Justice

Based on work by Professor Tom Tyler of the Yale Law School, Procedural Justice (PJ) (sometimes also called Procedural Fairness) looks at how judgements about justice or injustice shapes the legitimacy of the courts and its systems. His book Why People Obey the Law states it is not fear of punishment that gets people to obey the law but, rather, whether they believe in its legitimacy. In fact, according to Dr. Martin Luther King, it is everyone’s duty to break unjust laws. Tyler has shown that even if a person loses a case, he or she will express satisfaction if they feel the procedure was fair – that they “had their day in court.” Practicing PJ, according to the PJ website, is “associated with higher levels of compliance with and greater amounts of satisfaction with decisions by authority figures.”

There is a PJ blog.

Labeling Theory

In 1963, sociologist Howard Saul Becker published The Outsiders: Studies in the Sociology of Deviance, the most well-known book on Labeling Theory. Prior to Becker’s work, sociologists looked at non-normative behavior to establish deviance. Instead, Becker focused on negative social sanctions or punishment. He said the deviant is the one to whom the label has been successfully applied. An essay about Becker’s work defined it as follows: “[D]eviance is not a quality of a bad person but it is the result of someone characterizing and labelling someone’s activity as bad.” Once the label “deviant” is applied, the more likely the person is to violate the law (act in a deviant manner). It becomes a self-fulfilling prophecy.

Once the label “deviant” is applied, the more likely the person is to violate the law

Labeling theory says social deviance can be prevented by replacing “moral indignation with tolerance.” Rehabilitation of the individual by altering their labels is key. Alternative measures such as mediation, victim/offender restorative justice procedures, restitution and diversion are encouraged. This, of course, does not explain the most serious of offenses including those that involve violence.

Reduction of recidivism is a primary goal of criminal justice processing including sentencing. Labeling the offender could result in unemployment, homelessness and other negative consequences of being labeled thus defeating that goal.

Applications to Problem-Solving Courts

It has been posited that TJ is the jurisprudential basis for drug treatment courts (DTCs) and that DTCs represent TJ in action.  One of the reasons for the success of DTCs is the relationship between the judge and the DTC participant. DTC judges practice PJ and have been recognized as a “Key Component” of DTCs.

What the judge does and, more importantly, how he or she does it is paramount in changing the behavior of the DTC participant. So isn’t it time we made another major change to advance TJ and PJ and retard Labeling Theory?

Michael P. Botticelli, Director of the White House Office of National Drug Control Policy (ONDCP), just published “Changing the Language of Addiction” in the Oct. 4 issue of the Journal of the American Medical Association (JAMA). He says the language used by medical professionals can shape our feelings about illnesses, particularly if the language is used to separate “us” from “them.”

Substance Use Disorders as defined by DSM 5 are presented as chronic brain disorders from which recovery is possible.

Even though Substance Use Disorders as defined by DSM 5 are presented as chronic brain disorders from which recovery is possible, the labels given those with the disorder can certainly stigmatize. Labels such as “junkie” and “crackhead” can affect the quantity and quality of care a patient receives according to Botticelli. In two different studies, health care professionals were more likely to support punitive action or withhold treatment if the individual was described as a “substance abuser” verses a “person with a substance use disorder.”

Under the Obama Administration, ONDCP published a position paper entitled “Changing the Language of Addiction.” It urges the use of “person-first language” to reduce stigma. Thus “drug abuser” is replaced by “person with a substance use disorder.” Labeling language “negatively affects perceptions and judgments about people with substance use disorders, including whether they should receive punishment rather than medical care for their disease.” The paper also urges use of “person in recovery” rather than terms such as “clean” or “dirty.” “Medication-assisted treatment” should be used rather than “replacement” or “substitution” therapy.

Botticelli says, “as part of their professional duty, clinicians strive to use language that accurately reflects science, promotes evidence-based treatment, and demonstrates respect for patients.” So should judges, attorneys, probation officers and treatment providers in problem-solving courts.