Therapeutic Justice
Purposeful Sentencing Fosters
• Public Safety
• Fiscal Responsibility
• Effective Habilitation
• A Close Working Relationship between the Judiciary and the DOC
The wise sentencing judge will consider both the intended and unintended consequences of a criminal sentence.
The judge should consider:
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Who should be punished
o Offender, Family, Community, Taxpayers
Why should we punish
How should we punish
How much should we punish
How do we measure the effectiveness of the punishment
o Cost Efficiency
o Moral Grounds.
Sentencing goals are the purposes sought by the sentencing judge. The judge usually develops goals or
objectives that are consistent with a sentencing theory or strategy for crime control that is favored by the
sentencing judge. There are five generally recognized sentencing goals:
(1) Punishment, retribution, or just deserts;
(2) General deterrence or discouraging crime by punishing some criminals "examples”;
(3) Special deterrence or discouraging the punished offender from committing future crimes;
(4) Incapacitation or protecting the community by removing the offender from society; and,
(5) Rehabilitation
These five goals are appropriate in each of the following models, or theories of sentencing or theories of
criminal justice; however, the priority of the goals may be ranked differently:
The Retributive Theory
This is sometimes called the justice theory. The retributive theory emphasizes that sentences should "fit" the
crime, this is the giving in return. For some, when they know that someone has committed a crime, they want a
sense that justice has been served, that the offender has received an appropriate consequence and as a result this,
in a sense, made things right. The emphasis is on providing a punishment that will make the offender realize the
suffering or pain he has imposed on others.
Deterrence Theory
The deterrence theory of justice is oriented towards providing punishment in order to provide a penalty that
serves to warn against future commissions of that offense and inspire abstinence. The subject of the deterrence
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may be that particular offender who is punished or all potential offenders in the society. The principle of this
theory is that fear of punishment discourages people from committing the crime.
The Selective Incapacitation Theory
This is sometime called the preventative theory. The selective incapacitation theory requires that individuals
who are or may be repeat offenders are either monitored or incarcerated (imprisoned) in order to reduce crime
and protect the public. For example, a thief can't break into people's houses while he's in jail.
Rehabilitation Theory
The rehabilitation or reformative theory is premised on believe that individuals should be sentenced in a way
that best contributes to their rehabilitation. This theory focuses on removing the causes of criminal behavior and
preventing reoccurrence of that behavior. For example, a thief can be taught job skills so that he can enter the
work-force and meet his financial needs honestly. An abuser or murderer could receive counseling so that he
can learn to deal with his emotions in a way that does not harm others.
Habilitative Theory
The Habilitative theory asserts some offenders have never acquired a pro-social value system or the cognitive,
social or vocational skills that provide a capacity for maximal independence of action in daily living, and thus
the sentence should be tailored to fill these developmental voids.
Expiatory Theory
The expiatory theory includes a belief that if the offender repents his misdeeds, he must be forgiven and
reintegrated into the society. This theory is similar to the civil law of torts in the sense that the focus is on the
restoration of the victim’s loss. The offender is not punished physically but is punished economically, and the
victim or the victim’s family is the recipient of the financial compensation.
Restorative Justice is often considered a variant of the expiation theory. It is a model that:
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Holds the offender directly accountable to the individual victim and the specific community affected by
the criminal act;
Requires the offender to take direct responsibility and “make things whole again,” to the degree that it
is possible;
Provides victims purposeful access to the court and corrections processes, which allows them to shape
offender obligations and;
Encourages the community to become involved directly in supporting victims, holding offenders
accountable, and providing opportunities for offenders to reintegrate into the community.
Formally speaking, until the adjudication process, we have no offender and no victim. Prior to adjudication of
guilt, we have defendants and witnesses. Post-adjudication and declaration of guilt, we have offenders and
victims. Couple that with the reality that the state is the party to the criminal prosecution, we end up with
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complaining witnesses and communities who feel estranged from the criminal justice process. This kind of
criminal justice process often results in a criminal justice escalator that warehouses nonviolent offenders for
ever increasing periods of time and then releasing them back to the community.
A system of restorative justice provides an early opportunity for the complaining witness to meaningfully
participate in the adjudication process. It also encourages the defendant to recognize that (s)he has harmed a
victim and a community; and, therefore needs to restore the victim/community to the pre-offense position to the
extent possible. When that occurs, the defendant recognizes that (s)he is in fact an offender who has harmed
herself, the victim, and the community. The justice system then needs to address the criminogenic and
developmental challenges that inspired the offender’s behavior and provide the offender an active role in
repairing the harm.
The Concept of Offender Reentry
Reentry is focused on the process of reintegrating the offender into the community. The crime has ruptured the
peace and tranquility of the community. The adjudication of guilt identifies the wrong doer. The sentence
announces the plan to correct the harm and restore right relationships in the community. Modern reentry
planning is front loaded. In the past the offender was not prepared for release into the community until the final
phase of incarceration. Modern reentry planning establishes a seamless transition of accountability and
resources at the outset of the offender’s entry into the custody of the state. This is achieved from reception
through the completion of any post-release supervision and beyond.
Offender Reentry Best Practices generally include:
Offender Assessments and Reentry Planning: The prison reception process should include the administration of
a risk and needs assessment to every offender entering prison, which should result in a Reentry Accountability
Plan. This plan provides the core document that guides offender programming throughout their reentry
transition.
Addressing Criminogenic Needs Through Offender Programming: Programming that targets the specific needs
of offenders. All custodial programming should receive periodic empirical evaluations to determine if they
effectively address offender needs.
Family Involvement in Reentry: There should be a family orientation program at each reception center. Also,
every agency that maintains a custodial institution should have a family council to elicit greater family
involvement during confinement and any community supervision upon release.
Employment Readiness and Discharge Planning: Career exploration programs for offenders and enhanced
marketing strategies for ex-offenders are key components of effective reentry planning.
Reentry-Centered Offender Supervision: Local community members should be recognized as key stakeholders
in the reentry process. Reentry orientation sessions should be conducted in the institution by parole officers
prior to release.
Community Justice Partnerships: A successful strategy includes the creation of a Faith-Based Advisory Council
which includes Regional Councils. These councils are linked to the institutions and parole offices and establish
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viable connecting points across the prison-community divide. Victims’ safety planning needs must also be
addressed for designated higher risk offenders.
Most incarcerated offenders will ultimately be released and most of those will return to the community that sent
them to prison. Public safety is enhanced by the supervision of offenders in the community. However, one of
the unfortunate effects of long prison sentences without (re)habilitative programming is that an increasing
number of offenders are leaving prison without post release community supervision because they have served
their full sentence.
Therapeutic Justice is focused on adequately classifying offender types and determining their needs. Then
offender is sentenced in a way that is designed to address public safety and correction of the offender’s
maladjustment in the most appropriate setting in a fiscally prudent way. Therapeutic justice serves as the
theoretical foundation for an ever expanding list of “problem solving” courts including; drug treatment courts,
domestic violence courts, mental healthy courts, teen courts, family preservation courts, non-support courts,
reentry courts, and the list goes on…The overall intent is to increase chances to achieve good outcomes and
avoid bad outcomes for all constituent groups in society.
All of the above should convince you that the development of a criminal sentence is a serious, complex and
risky task. However, proper attention to purpose, preparation and execution can help the sentencing judge
manage that risk. Consider the following formula: ENDS = WAYS + MEANS. In this formula ENDS are
defined as desired end states. The ENDS are your final goals or objectives. WAYS are defined as the methods,
procedures, practices, and programs that are used to achieve the ends. MEANS are defined as the resources that
are expended on the WAYS t used to achieve the ENDS. This model is really an equation that balances what
you want with what you are willing and able to pay for. This formula describes the strategy to achieve your
ENDS. This strategy is of course informed by your judicial theory and philosophy.
A balanced strategy achieves the ENDS with minimal risk. Risk explains or describes the gap between what is
to be achieved and the WAYS and resources available to achieve the objective. Since there are never enough
resources or clever WAYS to assure 100% success, there is always some risk. The strategist seeks to minimize
this risk through his or her development of the strategy--the balance of ends, ways, and means. This kind of
strategic thinking is the essence of purposeful sentencing.
I believe the philosophy of Therapeutic Justice and the recent creation of various types of Problem Solving
Courts are the product of the recognition that we are not doing a good job of socializing an increasing
proportion of the children in this country. There are multiple competing explanations for why that has occurred
which are beyond the scope to this paper. This paper explores the concepts of purposeful sentencing, moral
reasoning, and their implications for the criminal justice system.
Socialization forms the conscience of the individual and guides the development of such conceptions as praise
worthiness and blame worthiness. Rationality operates in the context of volition, cognition and emotion. Any
successful attempt to understand or influence human action must be informed by this process. This paper is
informed by my years of experience presiding over criminal dockets and the ideas expressed in two books: The
“Theory of Moral Sentiments” by Adam Smith and “The Punishment Myth” by Judge Dennis A. Challeen and
Dr. Ken Robinson.
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Adam Smith developed a theory of moral reasoning based on the notion that the individual develops an
understanding of morality by and through his relations with other humans. Justice is giving to the other that
which is due. It is the result of properly balancing liberty and duty. In one sense this requires us to avoid
harming the other's person, property, or reputation. In another sense it also requires us to love and respect the
other as an end and not a means to an end. We are obligated to treat the other by word and deed, in a manner
that is suitable to his character, situation, and connection with us. Justice encompasses and is informed by all of
the virtues. Joy and peace of mind are the rewards of virtue.
Injustice provokes the resentment of all humanity and the vengeance of the victim who has no faith that justice
will prevail without him inflicting harm on the offender. The villain lives in insecurity. He is filled with fear
and consternation at the thought of the punishment that humanity is willing and able to inflict upon him as soon
as his crime is discovered. The criminal is desperate because she knows she can't even imagine a power, art, or
method of concealment that can protect her from the requirements of justice.
Right action procures us the esteem and love of those we live with; wrong action excites their contempt and
hatred. Right action produces peace and security, wrong action causes us to forfeit those blissful mental states.
The truly innocent man is mortified by an unjust accusation because he knows of, and dreads the odious
contempt and indignation that society heaps upon the guilty.
The founders of our system of criminal justice understood that our success in our various enterprises, in fact our
very happiness is dependent on the good or bad reputation we enjoy or suffer and the resultant disposition of
our neighbors to either assist or oppose us. The founders also recognized that innocence is extremely difficult
to prove. Thus, they crafted a system of criminal justice that is based upon a presumption of innocence.
Our system of justice is designed to both encourage the virtuous and correct the vicious. Exposing the
foolishness of vicious conduct is an effective way to do justice. The foolish person overestimates the pleasure
he will receive from engaging in bad conduct and underestimates the pain he will cause by that bad conduct.
I believe this requires explicit moral reasoning. The judge is a leader and a teacher who is well suited to
improve the moral climate of the community. The majority of the people that we see in criminal court have not
been effectively parented, mentored or discipled. A responsible person is able to respond in an appropriate
manner to the situation she is confronted with.
It is a truism that senior citizens often decry the decline in morality. It is a pattern that repeats age after age.
And so it is today… We often hear things like: “There is no loyalty to the company… The company has no
loyalty to the employees… No one takes responsibility… Everyone has an excuse… It is always someone
else’s fault. What’s in it for me? Do what you want, just don’t get caught….” The get-over-mentality presents
a significant challenge to our nation. There are a significant number of people in our society who present
themselves in our courtrooms with three significant pathologies:
1) Excessive Present Time Orientation;
2) Lack of Critical Thinking Skills; and,
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3) Excessive Self-Centeredness.
Morality and moral reasoning are byproducts of sympathy. Sympathy is an extension of empathic concern, or
the perception, understanding, and reaction to the desires, needs or distress, of another human being. The
person who lacks empathy will inevitably produce errors in moral reasoning. The empathic person whose
conscience is properly formed has developed the capacity for moral reasoning and self correction.
The reprobate & inveterate liar is not only not worthy of belief, he is not entitled to the sort of credit that
produces ease, comfort, and peace of mind. The fraud can never be assured of the peaceful possession of his
goods. He has no claim to the society of honest men; thus, his existence is always perilous.
The judge's job includes crafting sentences that incentivizes virtue and helps the offender correct the errors of
perception, analysis, and judgment that resulted in the overestimation of pleasure and underestimation of pain
that would result from the vicious act. The pronouncement and execution of these therapeutic sentences are
social actions that are taken for the benefit of both the community and the offender. Correction often requires
education and/or treatment delivered in a social setting that encourages the development of empathy and a
reduction of excessive focus on self. If correction is not possible, isolation is required. I am asking you to consider both the intended and unintended consequences of your sentence both during the
execution of the sentence and after the sentence is fully discharged. I am asking you to pay attention to the
thoughts and emotions of everyone in the courtroom and everyone who may learn of your sentence. I think it is
a good practice to validate the reasonable feelings of victims, witnesses, and observers in court. I am also
asking you to confront the offender with her wrongful conduct and forcefully declare its wrongfulness and the
excessive selfishness of the offender. A good sentence is one that accomplishes your objectives with the least
collateral costs.
Efficiency refers to the way you handle things, effectiveness refers to the way you handle people. An efficient
and effective criminal justice system is one that can rapidly move a person thru each of four different status
changes:
1) Defendant;
2) Offender;
3) Restituting Penitent; and,
4) Newly responsible member of the community who is both reconciled with and reintegrated to the
community.
In “The Punishment Myth”, Judge Dennis A. Challeen and Dr. Ken Robinson describe some of the effects of
the fact that we are not doing a good job of socializing an increasing proportion of the children in this country.
Inadequately socialized people are unable to adequately respond in many of the situations that they are
confronted with. They have never been habilitated to our society. They are separate and apart, harmed,
harmful, and alienated, and yet they are present with us. They are chronic criminals living dysfunctional lives.
Punishment does not correct these people because they possess an abnormal world view and a faulty belief
system which causes them to interpret our punishment in unintended ways. The punishment we inflict does not
inspire them to change; it is merely something to be endured.
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Responsible people are the products of adequate socialization. They are capable of effective moral reasoning.
There are multiple levels of moral reasoning and some people are operating at higher levels than others. The
people who are on the mid-range and higher levels of the moral reasoning scale can be effectively corrected by
punishment. These authors are proponents of cognitive behavioral therapy in general and Moral Reconation
Therapy in particular as an effective way to correct faulty beliefs and improve the level of moral reasoning of
criminal offenders.
They have coined three mildly offensive terms to describe the three types of offenders that sentencing judges
regularly confront (NORPs, SLICKs, & SLUGs). These types have different characteristics and their assertion
is that you can only achieve your sentencing objectives if your sentence adequately addresses the offender’s
character and situation. I think this scheme/model can help the judge who does not have the benefit of the
results of a risk/needs assessment of the offender prior to the sentencing hearing. This scheme / model present
the following three types: NORPs, SLICKs & SLUGs.
A NORP is a Normal Ordinary Responsible Person who has committed a crime and this behavior is unusual and
out-of-character. The NORP is mortified by that action and has probably at least started the self-correcting
process by the time of adjudication.
The SLICK is a sociopathic or psychopathic personality who lacks empathy, is cruel, and evil. The SLICK will
attempt and may succeed in conning / charming his way out of his present difficulty.
The SLUG is an irresponsible chronic offender who has a loser personality. The SLUG endures punishment
without changing faulty reasoning, is easily institutionalized, and gets comfortable in uncomfortable situations.
If you have over the course of multiple court appearances had an opportunity observe the offender’s behavior
and mode of communication you may be able to sort the offender into one of these character types and let that
information inform the development of your sentence. I suspect that many of you are already using this coping
technique but have simply not thought about it the kind of systematic manner that these authors have. Although
these three categories were developed collaboratively by a psychologist and a judge, they are not intended to
produce a medical diagnosis.
This is simply a coping technique that judges can use to deal with the large number of cases that we are
presented with, at a rate that keeps the process moving along. Remember, our job requires us to sort defendants
into those who are not guilty and those who are offenders. We then sort offenders into those who only pay
fines, those who are on probation, and those who are incarcerated. This coping technique is applied to
offenders and not defendants. The criminal defendant is presumed to be an innocent and responsible citizen.
An offender has not responded appropriately to the situation presented on the date of the offense. The State has
a moral right to restrict the liberty of offenders for the purpose of correcting them and protecting society.
Probation is an opportunity for the offender to demonstrate good behavior and character
development/reformation. In this paradigm prison is a necessary evil and a testament to our inability to
adequately socialize a significant number of our children. We must all redouble our efforts to help parents raise
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respectful, responsible, and resourceful children, and our schools to teach them to read, write, reason, and
compute. Everything I do as a judge is a poor substitute for that kind of early and initial socialization.
Most nonviolent offenders are reactive instead of responsible. We should respond to them with graduated
sanctions to develop their mental, physical, and spiritual capacity to respond appropriately to both internal and
external stimuli. I use my judicial position to officially provide positive, negative, and developmental
sanctions… My goals are to:
1) Incapacitate violent offenders, and
2) Get the non-violent offender clean, sober, responsible, employable, and employed.
A paradigm is a set of assumptions, concepts, values, and practices that constitutes a way of viewing reality.
The Controlling Paradigm that I am attempting to introduce to my probationers is: YOU ARE NOT IN
CONTROL! Principles are in control.
Principle as moral law: Principles are a set of values that orientate and rule the conduct of a given society.
Parents, teachers, preachers, mentors and coaches are charged with the responsibility to properly form the
consciences of children so they will freely choose to observe their obligations and not abuse their liberty.
Parents, teachers, preachers, mentors and coaches are the principle actors in the socialization process; however,
the child’s peers and the media are also involved in this process.
Principle as a juridic law: Principles are also the set of values that inspire the written norms that organize
the life of a given society submitting individuals to the powers and authority of the State. The law establishes a
legal obligation, in coercive ways that limits the liberty of the individuals.
The judge is an agent of society who can and should tell the offender: “You have the freedom to choose your
actions but you can’t choose the consequences of your actions. Principles control the consequences of those
choices, even if you do not understand these principles. Gravity is a natural law that worked before the apple
fell on Isaac Newton’s head. There is a power higher than the individual and that power created the laws of
nature and the principles of human relations. State and federal laws were enacted by people who were aware of
these natural laws and principles of human relations.” I believe those in the courtroom during the
pronouncement of sentence perceive that justice is done when the pronouncement of sentence conveys the
moral reasoning that was used in the development of that sentence. I also believe the failure to pronounce that
reasoning may convey a perception of arbitrary decision making.
Values are subjective while principles are objective. The more closely the offender’s values align with
principles, the more effective he will be with other people. The constant search for immediate personal pleasure
retards effectiveness.
In the Therapeutic Justice Paradigm, the judge, probation officer and treatment provider form a team. The
prosecuting attorney and defense attorney are non adversarial partners in this venture. We surveil and intervene
to correct the naughty and reward the nice. We have regular and frequent office visits, field inspections, and
court appearances. Official actors impose a positive societal response to the offender’s pro-social behavior and
a negative societal response that is often coupled with a corrective developmental response to the offender’s
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anti-social behavior. All of this is intended to alter the probationer’s understanding of reality and his capacity to
respond to it.
Most probationers have a bad habit of uncritically reacting to internal and external stimuli in a manner that is
solely calculated to produce the most immediate personal gratification. The problem solving court is a team
effort that helps the probationer substitute good habits for bad habits.
The probationer gradually learns to respond to an internal or external event by 1) pausing, then becoming aware
of the situation and the perspectives of all concerned, 2) consulting his/her subjective values as well as his/her
understanding of objective principles to determine the right thing to do, 3) use his/her imagination to visualize
himself actually doing that right thing and receiving the beneficial consequences of that right action, 4) use his
independent will to make the decision to do the right thing, and then 5) actually do it.
Success is the capacity to take care of oneself and the people that one cares about. Most probationers initially
care very little for anyone other than themselves and they lack the capacity to adequately care for themselves.
Developmental sanctions provide instruction and experience. Developing new skills, holding down a job,
effectively caring for dependents, and starting a business helps to cement their ties to the community. This
process helps them achieve functional independence recognize, and value their interdependent relationships
with other individuals, one another, and the community.
Crime disrupts the peace and tranquility of the community. Justice requires a restorative intervention to set
things right again. Adjudication resolves the dispute over what gave rise to the controversy. The sentence
describes the corrective action that is necessary for a restoration of the right relationships, which in turn
produces the peace and tranquility that provides the support necessary for us to flourish. I have heard it said
that justice is love in action; however, although the state can coerce us to avoid harming each other, it can't
coerce us to love each other. Copyright © by Jules Edwards, 2012. Some rights reserved. Tell me what you think. Tell others where you read it first. [email protected] Creative Commons Attribution‐NonCommercial‐ShareAlike 3.0 Unported License. To view a copy of this license, visit http://creativecommons.org/licenses/by‐nc‐sa/3.0/ or send a letter to Creative Commons, 444 Castro Street, Suite 900, Mountain View, California, 94041, USA. Page 9 of 9