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New Wine in New Bottles: The Need to Sketch a Therapeutic Jurisprudence 'Code' of Proposed Criminal Processes and Practices

7 Arizona Summit Law Review 463 (2014)

Arizona Legal Studies Discussion Paper No. 12-16

19 Pages Posted: 23 May 2012 Last revised: 5 Sep 2014

David B. Wexler

University of Puerto Rico - School of Law; University of Arizona James E. Rogers College of Law

Date Written: June 26, 2014

Abstract

La versión española de este artículo se puede encontrar en: http://ssrn.com/abstract=2466124.

This essay forms the basis of a presentation at Balliol College, Oxford University, at the International Symposium on Therapeutic Jurisprudence and Problem-Solving Justice.

Although therapeutic jurisprudence (TJ) actually originated outside the context of problem-solving courts, TJ in practice remains closely associated with such courts, probably because their structure invites the use of a style of judging endorsed by the TJ literature. Recently, however, for economic and other reasons, there has been an interest in “mainstreaming” TJ and related approaches to judging. For that to occur, we need to examine the governing “legal landscapes” (legal rules and legal procedures) in mainstream criminal courts to see how “TJ-friendly “ — or unfriendly — they may be. We may conceptualize the principles of TJ judging as a kind of “liquid,” and can look at the operative legal structures as “bottles,” An analysis of varying legal provisions will indicate how much of the TJ liquid can be poured into the assorted bottles. This examination can lead to proposing a TJ “code” of proposed criminal processes, together with a commentary explaining how, under the given suggested structures, the law can be administered to maximize the use of TJ judging principles. In the present essay, I concentrate mostly (but not exclusively) on US law, although the coverage is quite spotty, and a state-by-state TJ look at relevant criminal processes is very much in order. Moreover, as TJ is now quite international in scope, my hope is that the exercise might be undertaken as well in other jurisdictions, and that the result may be the creation of a rich body of TJ thinking in a comparative law context.

Keywords: therapeutic jurisprudence, sentencing, diversion, probation, parole, conditional release, supervised release, problem-solving courts, comparative law

Suggested Citation

Wexler, David B., New Wine in New Bottles: The Need to Sketch a Therapeutic Jurisprudence 'Code' of Proposed Criminal Processes and Practices (June 26, 2014). 7 Arizona Summit Law Review 463 (2014); Arizona Legal Studies Discussion Paper No. 12-16. Available at SSRN: https://ssrn.com/abstract=2065454 or http://dx.doi.org/10.2139/ssrn.2065454

David Wexler (Contact Author)

University of Puerto Rico - School of Law ( email )

PO Box 23349
San Juan.PR, AZ 00931
Puerto Rico
787-565-1625 (Phone)

HOME PAGE: https://law.arizona.edu/david-b-wexler

University of Arizona James E. Rogers College of Law

P.O. Box 210176
Tucson, AZ 85721-0176
United States
787-565-1625 (Phone)

HOME PAGE: https://law.arizona.edu/david-b-wexler

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