Therapeutic jurisprudence (TJ) recognizes that, as a therapeutic agent, the law can have therapeutic or anti-therapeutic conse- quences.298It asks whether legal rules, procedures, and lawyer roles can or should be reshaped to enhance their therapeutic potential while not subordinating due process principles.299
Professor David Wexler clearly identifies how the inherent tension in this inquiry must be resolved: the law’s use of “mental health information to improve therapeutic functioning [cannot] impinge upon justice concerns.”300
As one of the authors (MLP) has written elsewhere, “An inquiry into therapeutic outcomes does not mean that thera- peutic concerns ‘trump’ civil rights and civil liberties.”301Therapeu- tic jurisprudence “look[s] at law as it actually impacts people’s lives,”302 and TJ supports “an ethic of care.”303 It attempts to bring about healing and wellness,304
and to value psychological health.305 In an earlier article about prosecutorial misconduct in death penalty cases, one of the authors (MLP) considered that issue in the context of therapeutic jurisprudence, and said this:
As stated flatly by Judge Juan Ramirez and Professor Amy Ronner, “the right to counsel is . . . the core of therapeutic
297. This section is largely adapted from Michael L. Perlin, “I’ve Got My Mind Made Up”:
How Judicial Teleology in Cases Involving Biologically Based Evidence Violates Therapeutic Jurispru- dence, 24 CARD. J. EQUAL RTS. & SOC. JUST. 81, 93–95 (2018) [hereinafter Perlin, Mind Made
Up]; see also Michael L. Perlin & Alison J. Lynch, “In the Wasteland of Your Mind”: Criminology, Scientific Discoveries and the Criminal Process, 4VA. J. CRIM. L. 304 (2016). Further, it distills the work of one of the authors (MLP) over the past twenty-seven years, beginning with Michael L. Perlin, What Is Therapeutic Jurisprudence?, 10 N.Y.L. SCH. J. HUM. RTS. 623 (1993). See gener-
ally on the development of the doctrine of therapeutic jurisprudence, Michael L. Perlin, “Have You Seen Dignity?”: The Story of the Development of Therapeutic Jurisprudence, 27 U.N.Z.L. REV. 1135 (2017); Michael L. Perlin, “Changing of the Guards”: David Wexler, Therapeutic Juris-
prudence, and the Transformation of Legal Scholarship, 69 INT’LJ. L. & PSYCHIATRY 3 (2019). 298. Perlin, supra note 139, at 912.
299. Perlin, supra note 113, at 751.
300. David B. Wexler, Therapeutic Jurisprudence and Changing Concepts of Legal Scholarship, 11 BEHAV. SCI. & L. 17, 21 (1993).
301. Michael L. Perlin, A Law of Healing, 68 U. CIN. L. REV. 407, 412 (2000).
302. Bruce J. Winick, Foreword: Therapeutic Jurisprudence Perspectives on Dealing with Victims
of Crime, 33 NOVA L. REV. 535, 535 (2009).
303. Perlin, Mind Made Up, supra note 297, at 94 (quoting, in part, Bruce J. Winick & David B. Wexler, The Use of Therapeutic Jurisprudence in Law School Clinical Education: Trans-
forming the Criminal Law Clinic, 13 CLINICAL L. REV. 605, 605–07 (2006)).
304. Id. (citing Bruce Winick, A Therapeutic Jurisprudence Model for Civil Commitment, in
INVOLUNTARY DETENTION & THERAPEUTIC JURISPRUDENCE: INTERNATIONAL PERSPECTIVES ON
CIVIL COMMITMENT23, 26 (Kate Diesfeld & Ian Freckelton eds., 2003)). 305. Id.
jurisprudence.”306 “Any death penalty system that provides inadequate counsel and that, at least as a partial result of that inadequacy, fails to insure that mental disability evi- dence is adequately considered and contextualized by death penalty decision-makers, fails miserably from a ther- apeutic jurisprudence perspective.” If counsel in death penalty cases fails to meet constitutional minima, it strains credulity to argue that such a practice might comport with TJ principles. TJ is the perfect mechanism “to expose [the law’s] pretextuality” because this pretextuality is clear in the death penalty context.307
Well over twenty years ago, one of the authors (MLP) concluded that “any death penalty system that provides inadequate counsel and that, at least as a partial result of that inadequacy, fails to in- sure that mental disability evidence is adequately considered and contextualized by death penalty decision-makers, fails miserably from a therapeutic jurisprudence perspective.”308 Sadly, little has been written since about the relationship between TJ and the death penalty.309 Some twenty years ago, the late Bruce Winick ar- gued persuasively that TJ prohibited the execution of seriously mentally ill offenders as that could not adequately serve the goals of retribution and deterrence.310 More recently, and from a very different perspective, Cynthia Adcock—a law professor who spent thirteen years representing death penalty defendants—focused on
306. Juan Ramirez Jr. & Amy D. Ronner, Voiceless Billy Budd: Melville’s Tribute to the Sixth
Amendment, 41 CAL. W. L. REV. 103, 119 (2004).
307. Perlin, Merchants, supra note 277, at 1542 (quoting, in part, Perlin, Executioner’s Face,
supra note 3, at 235; Michael L. Perlin, “Things Have Changed”: Looking at Non-Institutional Mental Disability Law Through the Sanism Filter, 46 N.Y.L.SCH. L. REV. 535, 544 (2003)). We agree completely with forensic psychologist Kathy Faulkner Yates, who has urged the use of therapeutic jurisprudence as a “diagnostic tool to identify the malignant way that pretextual- ity poisons forensic and judicial relationships.” Kathy Faulkner Yates, Therapeutic Issues Asso-
ciated with Confidentiality and Informed Consent in Forensic Evaluations, 20NEW ENG. J. CRIM. & CIV. CONFINEMENT 345, 357–58 (1994).
308. Perlin, Executioner’s Face, supra note 3, at 235. David Wexler and Bruce Winick fore- saw this nearly thirty years ago. See Therapeutic Jurisprudence as a New Approach to Mental Health
Law Policy Analysis and Research, 45 U.MIAMI L. REV. 979 (1991) (applying TJ to cases involv- ing incompetent death row inmates).
309. For an important recent international law-focused article, see Muhammad Amir Munir, Judging in a Therapeutic Way: TJ Audit of Juvenile, Probation and Criminal Procedure Law
in Pakistan with Reference to Therapeutic Design and Therapeutic Application of Law, in THE
RESPONSIVE JUDGE241, 248 (Tania Sourdin et al eds., 2018) (“If the legal actors are not friendly to TJ practices as reflected in [Pakistani statutory law] there is a chance that a child may suffer the death penalty through no fault of their own.”).
For another consideration of the death penalty and TJ in the context of family survivors, see Marilyn Peterson Armour & Mark S. Umbreit, Assessing the Impact of the Ultimate Penal
Sanction on Homicide Survivors: A Two State Comparison, 96 MARQ. L. REV. 1 (2012).
310. Bruce Winick, The Supreme Court’s Evolving Death Penalty Jurisprudence: Severe Mental Illness as the Next Frontier, 50 B.C. L. REV. 785, 854–58 (2009).
the “psychological devastation caused by the death penalty on those who the lawmakers do not intend to be the target of death penalty laws.”311But there is so much more to consider.