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Disenfranchisement Creep

Under federal law, states decide whether people lose their voting rights as a result of criminal convictions or mental incapacity. But states vary widely in whether they take federal law up on that offer of exclusion. In one state, you may never lose the right to vote for a felony conviction; in another, you might be disenfranchised for life. Existing literature has explored many facets of disenfranchisement, from analyzing its impacts to proposing reforms. But it has largely overlooked the key role of state constitutions in limiting disenfranchisement.

Unlike the U.S. Constitution, which has no explicit voting rights guarantee, state constitutions both affirmatively grant the right to vote and list explicit, enumerated exceptions to that right. But state actors routinely overstep those bounds—a practice this Article refers to as “disenfranchisement creep.” Based on original analysis of all fifty state constitutions and the complex network of statutes, regulations, and practices that together constitute state disenfranchisement law, this Article identifies two primary ways in which state actors disenfranchise people beyond the scope of state constitutions. First, state actors explicitly disenfranchise groups of people beyond what the constitutional texts seemingly allow. This Article newly identifies this phenomenon as de jure disenfranchisement creep. Second, state actors impose myriad burdens, large and small, that effectively disenfranchise those who supposedly have the right to vote. This Article newly explores this de facto disenfranchisement creep through the lens of state constitutions, concluding that it often violates existing voting rights guarantees. In identifying both types of overreaches, this Article offers an underexplored approach to reining in disenfranchisement: state constitutional claims in state court.

Introduction

The right to vote is not uniform across the United States. In one state, you might need to show a voter ID at the polls; in another you do not.1 1.See Marni Rose McFall, Map Shows Voter ID Laws by State, Newsweek (Sep. 9, 2024, at 12:04 ET), https://www.newsweek.com/map-shows-voter-id-laws-state-1950691.Show More In one, you can register to vote on Election Day; in another, you must register weeks in advance.2 2.See Aliss Higham, US Voter Registration Deadlines for All 50 States, Newsweek (May 26, 2024, at 04:00 ET), https://www.newsweek.com/us-voter-registration-deadline-all-50-sta‌tes-1904415.Show More But nowhere are the discrepancies more pronounced than on the basic question of who is eligible to vote to begin with.

Under federal law, states decide whether people lose their voting rights as a result of criminal convictions or determinations of mental incapacity to vote.3 3.See infra Section I.A.Show More And states vary widely in whether they take federal law up on that offer of exclusion. Only two states—Vermont and Maine—do not disenfranchise anyone for criminal convictions,4 4.Christopher Uggen, Ryan Larson, Sarah Shannon, Robert Stewart & Molly Hauf, The Sent’g Project, Locked Out 2024: Four Million Denied Voting Rights Due to a Felony Conviction 3–4 (2024), https://www.sentencingproject.org/reports/locked-out-2024-four-mil‌lion-denied-voting-rights-due-to-a-felony-conviction/ [https://perma.cc/3NST-VYB8]. The District of Columbia and the Commonwealth of Puerto Rico also do not restrict voting based on criminal convictions. Id. at 3.Show More and only a handful of states do not explicitly exclude anyone based on mental capacity.5 5.Sally Balch Hurme & Paul S. Appelbaum, Defining and Assessing Capacity to Vote: The Effect of Mental Impairment on the Rights of Voters, 38 McGeorge L. Rev. 931, 940 (2007) (“Of those twenty-eight states with no mental-status criteria in their election law provisions, eight have no constitutional mention of ineligibility due to mental status.”). However, guardianship laws in some of these states may nevertheless permit the removal of various rights, potentially including the right to vote. See id. at 980–1014.Show More Every other state disenfranchises people in one or both of these categories, and their reasons vary—Alaska’s constitution says that no person who has been “convicted of a felony involving moral turpitude” or is “of unsound mind” may vote;6 6.Alaska Const. art. V, § 2.Show More Michigan’s says that the legislature can enact laws disenfranchising individuals “because of mental incompetence or commitment to a jail or penal institution.”7 7.Mich. Const. art. II, § 2.Show More The combined result of this patchwork of laws is profound—in 2024, approximately four million adults in the United States were not allowed to vote due to criminal convictions,8 8.Uggen et al., supra note 4, at 2.Show More and tens or hundreds of thousands more were not allowed to vote due to determinations of mental incapacity.9 9.The number of people excluded from voting based on mental incapacity is not thoroughly tracked. According to one estimate, 32,000 Californians lost their right to vote based on mental capacity between 2008 and 2018. Matt Vasilogambros, Thousands Lose Right to Vote Under ‘Incompetence’ Laws, Stateline (Mar. 21, 2018, at 00:00 ET), https://st‌ateline.org/2018/03/21/thousands-lose-right-to-vote-under-incompetence-laws/ [https://perm‌a.cc/HS93-KMY3]. Nationwide, the number of adults living under guardianship or conservatorship was estimated to be approximately 1.3 million as of 2018. Nat’l Council on Disability, Beyond Guardianship: Toward Alternatives That Promote Greater Self-Determination 65 (2018), https://www.ncd.gov/assets/uploads/reports/2018/ncd_beyond_gua‌rdianship.pdf [https://perma.cc/AN8S-AMSE]. However, “[t]his estimate is based on the handful of states that do track and report reasonably reliable data on guardianships,” and it does not provide information about how many of those under guardianship are ineligible to vote. Id.; see also Jim Berchtold, Just. in Aging, Guardianship Data Reform 1 (2024), http‌s://justiceinaging.org/guardianship-data-reform/ [https://perma.cc/TE9R-ZNJD] (“Detailed data on guardianship is almost nonexistent and even basic information is largely unknown.”).Show More

The current landscape of disenfranchisement in the United States has made it an outlier in the international community and drawn widespread critiques and calls for reform.10 10.See Laleh Ispahani, ACLU, Out of Step with the World: An Analysis of Felony Disenfranchisement in the U.S. and Other Democracies 4 (2006), https://www.aclu.org/sites/‌default/files/pdfs/votingrights/outofstep_20060525.pdf [https://perma.cc/7X26-QG3R].Show More Sociologists, for example, have highlighted the predominantly racist origins and racially disparate impact of many crime-based disenfranchisement laws.11 11.Uggen et al., supra note 4, at 2 (“Among the adult African American population, 4.5% is disenfranchised compared to 1.3% of the adult non-African American population.”); Angela Behrens, Christopher Uggen & Jeff Manza, Ballot Manipulation and the “Menace of Negro Domination”: Racial Threat and Felon Disenfranchisement in the United States, 1850–2002, 109 Am. J. Socio. 559, 559 (2003) (“Many felon voting bans were passed in the late 1860s and 1870s, when implementation of the Fifteenth Amendment and its extension of voting rights to African-Americans were ardently contested.”); Jeff Manza & Christopher Uggen, Locked Out: Felon Disenfranchisement and American Democracy 68 (2006) [hereinafter Manza & Uggen, Locked Out] (concluding based on statistical analysis that felon disenfranchisement “has to be viewed as one of the many side effects of the peculiar history of racial politics in the United States”); see also John Dinan, The Adoption of Criminal Disenfranchisement Provisions in the United States: Lessons from the State Constitutional Convention Debates, 19 J. Pol’y Hist. 282, 284 (2007) (“[S]cholars and litigants have argued that these [criminal disenfranchisement] provisions might have been motivated by a desire to reduce the voting power of African Americans, who are generally affected by these policies to a disproportionate extent.”).Show More Political scientists, sociologists, and legal scholars have debated whether anyone should be disenfranchised based on cognitive capacity or criminal convictions.12 12.For arguments against disenfranchisement, see, e.g., Elizabeth R. Schiltz, The Ties That Bind Idiots and Infamous Criminals: Disenfranchisement of Persons with Cognitive Impairments, 13 U. St. Thomas L.J. 100, 117 (2016) (questioning the presumption “that mental incapacity is a legitimate reason to deny[] a person the right to vote at all”); Boris Feldman, Note, Mental Disability and the Right to Vote, 88 Yale L.J. 1644, 1645 (1979) (arguing that “states should not disfranchise any persons on the grounds of mental disability”); Debra Parkes, Ballot Boxes Behind Bars: Toward the Repeal of Prisoner Disenfranchisement Laws, 13 Temp. Pol. & C.R. L. Rev. 71, 74 (2003) (arguing that “the ballot box should be opened to all prisoners in the United States”); Carlos M. Portugal, Note, Democracy Frozen in Devonian Amber: The Racial Impact of Permanent Felon Disenfranchisement in Florida, 57 U. Mia. L. Rev. 1317, 1338 (2003) (“[F]elon disenfranchisement is anachronistic.”); Mandeep K. Dhami, Prisoner Disenfranchisement Policy: A Threat to Democracy?, 5 Analyses Soc. Issues & Pub. Pol’y 235, 239–40 (2005) (critiquing common rationales for crime-related disenfranchisement); Pamela S. Karlan, Convictions and Doubts: Retribution, Representation, and the Debate over Felon Disenfranchisement, 56 Stan. L. Rev. 1147, 1149 (2004) [hereinafter Karlan, Convictions and Doubts] (“Once voting is understood as a fundamental right, rather than as a state-created privilege, the essentially punitive nature of criminal disenfranchisement statutes becomes undeniable.”); Note, The Disenfranchisement of Ex-Felons: Citizenship, Criminality, and “The Purity of the Ballot Box,” 102 Harv. L. Rev. 1300, 1301–09 (1989) (arguing that the policy and theoretical rationales for criminal disenfranchisement fail to justify the practice); George P. Fletcher, Disenfranchisement as Punishment: Reflections on the Racial Uses of Infamia, 46 UCLA L. Rev. 1895, 1898 (1999) (critiquing “political disenfranchisement as a technique for reinforcing the branding of felons as the untouchable class of American society”); Alec C. Ewald, “Civil Death”: The Ideological Paradox of Criminal Disenfranchisement Law in the United States, 2002 Wis. L. Rev. 1045, 1049 (arguing that “the modern commitments of both liberalism and republicanism should lead Americans to abandon the practice” of felon disenfranchisement). For arguments to the contrary, see, e.g., Roger Clegg, George T. Conway III & Kenneth K. Lee, The Case Against Felon Voting, 2 U. St. Thomas J.L. & Pub. Pol’y 1, 2 (2008) (“[A]llowing felons to vote is simply problematic both as a legal and a policy matter.”); George Brooks, Felon Disenfranchisement: Law, History, Policy, and Politics, 32 Fordham Urb. L.J. 851, 899 (2005) (“Felon disenfranchisement is plainly constitutional and consistent with the intent of the framers of both the Fourteenth Amendment and the Voting Rights Act.”); Mary Sigler, Defensible Disenfranchisement, 99 Iowa L. Rev. 1725, 1728 (2014) (“[O]ffenders who commit serious felonies are subject to regulatory disenfranchisement because they have violated the civic trust that makes liberal democracy possible.”).Show More Other scholars have meanwhile examined the underappreciated impacts of disenfranchisement laws. Professors Beth Colgan, Michael Morse, and Marc Meredith, for example, have analyzed and critiqued the impact of what Colgan calls “wealth-based penal disenfranchisement”—the widespread practice of requiring individuals involved in the criminal legal system to pay all fines, court costs, fees, and restitution amounts before they can regain the right to vote.13 13.Beth A. Colgan, Wealth-Based Penal Disenfranchisement, 72 Vand. L. Rev. 55, 60 (2019) (explaining that “wealth-based penal disenfranchisement is sanctioned under the laws of forty-eight states and the District of Columbia, potentially preventing up to a million people or more from voting” (footnote omitted)); Marc Meredith & Michael Morse, Discretionary Disenfranchisement: The Case of Legal Financial Obligations, 46 J. Legal Stud. 309, 310–12, 323–24 (2017) (collecting data on “legal financial obligations” that can burden the right to vote even after sentence completion).Show More Additionally, many scholars have highlighted possible paths to disenfranchisement reform, including litigation in federal court, executive pardons on a widespread basis, and state or federal legislation.14 14.Lily Verbeck, Note, A Class Left Behind: An Assessment of State Voter Competency Laws and the Disenfranchisement of People with Mental Disabilities, 32 Geo. Mason U. C.R. L.J. 149, 151–52 (2022) (arguing that “courts should strike down general prohibition incompetency laws” and that “laws that allow judges to decide an individual’s capacity to vote should implement a clear and convincing evidence standard”); Neil L. Sobol, Defeating De Facto Disenfranchisement of Criminal Defendants, 75 Fla. L. Rev. 287, 335–55 (2023) (identifying legislative, regulatory, and other mechanisms to address de facto disenfranchisement); Christian A. Johnson, Disenfranchisement, Voter Disqualifications, and Felony Convictions: Searching for State Law Uniformity, 32 Widener Commonwealth L. Rev. 35, 36 (2023) (arguing for greater uniformity in disenfranchisement laws across states); Christopher R. Murray, Note, Felon Disenfranchisement in Alaska and the Voting Rights Act of 1965, 23 Alaska L. Rev. 289, 290 (2006) (examining the validity of disenfranchisement laws under the Voting Rights Act); Manza & Uggen, Locked Out, supra note 11, at 227–28 (identifying “legislative change as the most likely source of policy change” for felon disenfranchisement); Amanda J. Wong, Note, Locked Up, Then Locked Out: The Case for Legislative—Rather than Executive—Felon Disenfranchisement Reform, 104 Corn. L. Rev. 1679, 1684–85 (2019) (surveying state gubernatorial re-enfranchisement actions and encouraging Congress to address disenfranchisement reform); Manoj Mate, Felony Disenfranchisement and Voting Rights Restoration in the States, 22 Nev. L.J. 967, 999–1003 (2022) (providing both short- and long-term strategies for ending felony disenfranchisement, including improved administrative processes, state and federal legislation, reshaping the federal judiciary, and federal constitutional amendment); John R. Cosgrove, Four New Arguments Against the Constitutionality of Felony Disenfranchisement, 26 T. Jefferson L. Rev. 157, 158, 175–95 (2004) (calling for lawyers to raise federal constitutional arguments against felony disenfranchisement); Daniel M. Katz, Article I, Section 4 of the Constitution, The Voting Rights Act, and Restoration of the Congressional Portion of the Election Ballot: The Final Frontier of Felon Disenfranchisement Jurisprudence?, 10 U. Pa. J.L. & Soc. Change 47, 50 (2007) (arguing that the Voting Rights Act is “the proper mechanism to invalidate disenfranchisement statutes”); see also Pamela S. Karlan, Framing the Voting Rights Claims of Cognitively Impaired Individuals, 38 McGeorge L. Rev. 917, 927–30 (2007) (discussing current statutory shortcomings); Hurme & Appelbaum, supra note 5, at 960–74 (formulating a standard for assessing capacity to vote); Richard M. Re & Christopher M. Re, Voting and Vice: Criminal Disenfranchisement and the Reconstruction Amendments, 121 Yale L.J. 1584, 1587–92 (2012) (discussing the promise and limits of claims under the Federal Constitution and the Voting Rights Act); Gabriel J. Chin, Reconstruction, Felon Disenfranchisement, and the Right to Vote: Did the Fifteenth Amendment Repeal Section 2 of the Fourteenth Amendment?, 92 Geo. L.J. 259, 263 (2004) (arguing for courts to reconsider the constitutionality of felony disenfranchisement).Show More

But existing literature has largely overlooked an important piece of the disenfranchisement landscape: state constitutions. State constitutions have the potential to play a key role in setting the limits of disenfranchisement via state court litigation.15 15.Cf. Nora V. Demleitner, Criminal Disenfranchisement in State Constitutions: A Marker of Exclusion, Punitiveness, and Fragile Citizenship, 26 Lewis & Clark L. Rev. 531, 533–34 (2022) (“[M]ost of the research on felon disenfranchisement focuses on the combined effect of state laws and constitutions without disaggregating the two different sources of law.”). Professor Nora Demleitner’s article “focuses on the current role of state constitutions in signaling the fragility of citizenship” and largely argues for state constitutional change rather than exploring the existing limits of state constitutions. Id. at 534, 536. Professors Sally Balch Hurme and Paul Appelbaum have also teased out state constitutional provisions from other laws in the context of mental capacity to vote, but their account is primarily descriptive and does not fully explore the ways in which states are overstepping these bounds. See Hurme & Appelbaum, supra note 5, at 934–36.Show More The literature on possible litigation-based reforms has focused almost exclusively on federal law, including the Voting Rights Act, the Equal Protection Clause, and the Eighth Amendment’s ban on cruel and unusual punishment.16 16.See, e.g., Re & Re, supra note 14, at 1663–68 (Voting Rights Act); Katz, supra note 14, at 48–50, 48 n.10 (Voting Rights Act); Chin, supra note 14, at 272–81 (Section 2 of the Fourteenth Amendment and the Fifteenth Amendment); Sobol, supra note 14, at 330–33 (Equal Protection Clause); Karlan, Convictions and Doubts, supra note 12, at 1164–69 (Eighth Amendment); Pamela A. Wilkins, The Mark of Cain: Disenfranchised Felons and the Constitutional No Man’s Land, 56 Syracuse L. Rev. 85, 88 (2005) (Eighth Amendment).Show More But lawsuits bringing these federal claims have been largely unsuccessful;17 17.SeeWong, supranote 14, at 1691–92; Meredith & Morse, supranote 13, at 316; Katz, supra note 14, at 49.Show More federal courts have repeatedly given states wide latitude to disenfranchise anyone convicted of a crime or deemed to be mentally incapable of voting.18 18.See infra Section I.A.Show More

In contrast, state constitutions enumerate specific permissible grounds for disenfranchisement that are typically narrower than the wide latitude afforded by federal law.19 19.See infra Section I.B.Show More And they provide far more robust provisions on the right to vote. Whereas the U.S. Constitution contains no explicit guarantee of the right to vote, every state constitution contains a voting rights provision.20 20.See Joshua A. Douglas, The Right to Vote Under State Constitutions, 67 Vand. L. Rev. 89, 101–02 (2014) [hereinafter Douglas, The Right to Vote]; see also infra notes 53–54 (discussing amendments since 2014).Show More Many also contain free and fair elections clauses21 21.See Douglas, The Right to Vote, supra note 20, at 103.Show More and other provisions that evince overarching commitments to “popular sovereignty, majority rule, and political equality,” which Professors Miriam Seifter and Jessica Bulman-Pozen have termed the “democracy principle.”22 22.Jessica Bulman-Pozen & Miriam Seifter, The Democracy Principle in State Constitutions, 119 Mich. L. Rev. 859, 864 (2021) (emphasis omitted); see also Joshua A. Douglas, The Power of the Electorate Under State Constitutions, 76 Fla. L. Rev. 1679, 1687 (2024) [hereinafter Douglas, The Power of the Electorate] (“The combination of clauses that confer special rights and protections on voters reveals a multilayered right to vote under state constitutions.”).Show More These unique documents thus offer a starkly different lens through which to assess the legality of disenfranchisement schemes—one that in many instances is far more rights-protective than federal law.

Applying this lens to existing disenfranchisement schemes reveals serious shortcomings and attendant opportunities for state court litigation. Based on original analysis of all fifty state constitutions and the complex network of statutes, regulations, and practices that together constitute state disenfranchisement law, this Article finds that, in state after state, governmental actors and institutions arguably overstep the bounds of their state constitutions. The result is a phenomenon that this Article refers to as “disenfranchisement creep”—the practice of state actors denying more people the vote than the state constitution allows.23 23.The concept of disenfranchisement creep is not necessarily limited to the realms of criminal and competency-related disenfranchisement. For example, where states perpetuate misinformation about voter identification requirements, these practices may similarly amount to a type of de facto disenfranchisement creep. This Article, however, only focuses on disenfranchisement creep in the context of the two areas of criminal and competency-related disenfranchisement, given their unique status in federal law as permissible grounds for disenfranchisement.Show More These failures manifest in two primary ways: de jure disenfranchisement creep and de facto disenfranchisement creep. Each offers a set of possible state constitutional claims to remedy them.

First, state actors in a series of states appear to be overstepping the bounds of their state constitutions by explicitly disenfranchising groups of people beyond the grounds listed in their constitutions. For example, the Missouri Constitution provides that “persons convicted of felony, or crime connected with the exercise of the right of suffrage may be excluded by law from voting.”24 24. Mo. Const. art. VIII, § 2.Show More But state law also disenfranchises anyone who is incarcerated for any type of misdemeanor—without any apparent constitutional authorization to do so.25 25.Mo. Rev. Stat. § 115.133(2)(1) (2025); see also Know Your Rights, Mo. State Pub. Def., https://publicdefender.mo.gov/know-your-rights/ [https://perma.cc/FUJ2-CXF4] (last visited Apr. 7, 2026) (explaining that individuals “currently imprisoned for a crime for which [they] have been convicted (felony or misdemeanor)” are not eligible to vote in Missouri).Show More This Article newly identifies this phenomenon of de jure disenfranchisement creep. Such overreaches—whether legislative or bureaucratic—can be challenged via relatively straightforward constitutional claims regarding the meaning of specific state constitutional terms or provisions. For example, is the legislature’s statutory definition of the constitutional term “felony involving moral turpitude” overbroad? Or, when a constitution provides that the legislature may disenfranchise those convicted of “infamous crimes,” can it also disenfranchise those convicted of non-infamous crimes?

Second, state actors routinely impose myriad burdens, large and small, that lead to de facto disenfranchisement of those who supposedly have the right to vote. For example, ahead of the 2024 general election in New Mexico, election officials repeatedly denied online voter registration applications from those who had previously been convicted of felonies—despite the fact that the state had enacted a law allowing anyone convicted of a felony to vote as long as they were no longer incarcerated.26 26.Lauren Gill, “A Year of Frustration”: How New Mexico Kept Denying People Voting Rights Despite Reform, Bolts (Oct. 29, 2024), https://boltsmag.org/voting-rights-restoration-‌reform-in-new-mexico/ [https://perma.cc/4QTT-5QLS].Show More Many of these individuals understandably assumed based on their rejected applications that they were not in fact eligible to vote.27 27.Id.; see also infra text accompanying notes 243–50.Show More This phenomenon of de facto disenfranchisement creep has been explored elsewhere, including by Professors Jessie Allen and Neil Sobol,28 28.See Jessie Allen, Documentary Disenfranchisement, 86 Tul. L. Rev. 389, 414 (2011); Sobol, supra note 14, at 292; see also Emily Rong Zhang, New Tricks for an Old Dog: Deterring the Vote Through Confusion in Felon Disenfranchisement, 84 Mo. L. Rev. 1037, 1039–40 (2019) (“As reforms slowly erode outright bans on voting for large swathes of the population, felon disenfranchisement laws increasingly suppress voting by confusing eligible voters.”).Show More but it has not been fully explored through the lens of state constitutional rights. Indeed, the obstacles at the federal level to claims based on de facto disenfranchisement have led scholars to advocate for legislation, rather than litigation, as a tool of reform.29 29.See, e.g., Sobol, supra note 14, at 330–55.Show More But state constitutions offer a potentially powerful and underutilized tool for challenging these practices. This is because those facing de facto disenfranchisement creep technically have the right to vote under their state constitutions, and many state courts take a far more robust approach to protecting voting rights than their federal counterparts. Therefore, if de facto disenfranchisement practices are unduly impinging on the right to vote, such as in the New Mexico example described above,30 30.See supra text accompanying note 26.Show More impacted individuals may be able to vindicate that claim in state court and seek affirmative changes in state practices to better facilitate their voting rights.

This state constitutional framework certainly has limits—in particular, it cannot be used to eradicate disenfranchisement where a state constitution expressly condones it. But it does offer a potentially powerful way to challenge the pervasive practices of disenfranchisement creep, requiring states to live up to their core democratic commitments for those who should not be excluded even under existing constitutional provisions.

Part I begins with a brief overview of the federal and state constitutional frameworks for disenfranchisement. Although federal law sets some guardrails around who states can or cannot exclude, it largely allows states to determine how or whether to disenfranchise anyone based on cognitive capacity or a criminal conviction. At the state level, state constitutions then further delineate who can or cannot be excluded from voting, coupling broad grants of the right to vote with specific, enumerated exclusions. Taken together, these state constitutional provisions offer a roadmap for understanding state voting rights: every citizen-resident of a certain age is entitled to vote, unless they are validly excluded under the state constitution’s specific exceptions.

Applying this framework to existing practices, Part II outlines the first set of violations discussed above: de jure disenfranchisement creep. De jure disenfranchisement creep occurs in three primary ways: first, state statutes disenfranchise groups beyond those mentioned in the state constitution; second, state actors define or apply a constitutional term in an overbroad way; or third, state actors define or apply a constitutional term in an inconsistent way. This Part first identifies and provides examples of this phenomenon and then turns to the viability of state constitutional claims in state court as a way to rein in these practices.

Part III outlines the second set of violations discussed above: de facto disenfranchisement creep. In particular, it focuses on two ways state actors deny or suppress the right to vote of those involved in criminal or competency proceedings: first, some state actors directly deny the right to vote to those who technically retain it, such as by improperly turning someone away from the polls or denying a voter’s registration application; second, some state actors deter individuals from voting or chill the right to vote, such as by perpetuating misinformation or failing to inform voters of their rights. After providing examples of these types of failings, this Part again turns to state constitutions as a tool for reining in practices perpetuating de facto disenfranchisement creep.

  1.  See Marni Rose McFall, Map Shows Voter ID Laws by State, Newsweek (Sep. 9, 2024, at 12:04 ET), https://www.newsweek.com/map-shows-voter-id-laws-state-1950691. ↑
  2.  See Aliss Higham, US Voter Registration Deadlines for All 50 States, Newsweek (May 26, 2024, at 04:00 ET), https://www.newsweek.com/us-voter-registration-deadline-all-50-sta‌tes-1904415. ↑
  3.  See infra Section I.A. ↑
  4.  Christopher Uggen, Ryan Larson, Sarah Shannon, Robert Stewart & Molly Hauf, The Sent’g Project, Locked Out 2024: Four Million Denied Voting Rights Due to a Felony Conviction 3–4 (2024), https://www.sentencingproject.org/reports/locked-out-2024-four-mil‌lion-denied-voting-rights-due-to-a-felony-conviction/ [https://perma.cc/3NST-VYB8]. The District of Columbia and the Commonwealth of Puerto Rico also do not restrict voting based on criminal convictions. Id. at 3. ↑
  5.  Sally Balch Hurme & Paul S. Appelbaum, Defining and Assessing Capacity to Vote: The Effect of Mental Impairment on the Rights of Voters, 38 McGeorge L. Rev. 931, 940 (2007) (“Of those twenty-eight states with no mental-status criteria in their election law provisions, eight have no constitutional mention of ineligibility due to mental status.”). However, guardianship laws in some of these states may nevertheless permit the removal of various rights, potentially including the right to vote. See id. at 980–1014. ↑
  6.  Alaska Const. art. V, § 2. ↑
  7.  Mich. Const. art. II, § 2. ↑
  8.  Uggen et al., supra note 4, at 2. ↑
  9.  The number of people excluded from voting based on mental incapacity is not thoroughly tracked. According to one estimate, 32,000 Californians lost their right to vote based on mental capacity between 2008 and 2018. Matt Vasilogambros, Thousands Lose Right to Vote Under ‘Incompetence’ Laws, Stateline (Mar. 21, 2018, at 00:00 ET), https://st‌ateline.org/2018/03/21/thousands-lose-right-to-vote-under-incompetence-laws/ [https://perm‌a.cc/HS93-KMY3]. Nationwide, the number of adults living under guardianship or conservatorship was estimated to be approximately 1.3 million as of 2018. Nat’l Council on Disability, Beyond Guardianship: Toward Alternatives That Promote Greater Self-Determination 65 (2018), https://www.ncd.gov/assets/uploads/reports/2018/ncd_beyond_gua‌rdianship.pdf [https://perma.cc/AN8S-AMSE]. However, “[t]his estimate is based on the handful of states that do track and report reasonably reliable data on guardianships,” and it does not provide information about how many of those under guardianship are ineligible to vote. Id.; see also Jim Berchtold, Just. in Aging, Guardianship Data Reform 1 (2024), http‌s://justiceinaging.org/guardianship-data-reform/ [https://perma.cc/TE9R-ZNJD] (“Detailed data on guardianship is almost nonexistent and even basic information is largely unknown.”). ↑
  10.  See Laleh Ispahani, ACLU, Out of Step with the World: An Analysis of Felony Disenfranchisement in the U.S. and Other Democracies 4 (2006), https://www.aclu.org/sites/‌default/files/pdfs/votingrights/outofstep_20060525.pdf [https://perma.cc/7X26-QG3R]. ↑
  11.  Uggen et al., supra note 4, at 2 (“Among the adult African American population, 4.5% is disenfranchised compared to 1.3% of the adult non-African American population.”); Angela Behrens, Christopher Uggen & Jeff Manza, Ballot Manipulation and the “Menace of Negro Domination”: Racial Threat and Felon Disenfranchisement in the United States, 1850–2002, 109 Am. J. Socio. 559, 559 (2003) (“Many felon voting bans were passed in the late 1860s and 1870s, when implementation of the Fifteenth Amendment and its extension of voting rights to African-Americans were ardently contested.”); Jeff Manza & Christopher Uggen, Locked Out: Felon Disenfranchisement and American Democracy 68 (2006) [hereinafter Manza & Uggen, Locked Out] (concluding based on statistical analysis that felon disenfranchisement “has to be viewed as one of the many side effects of the peculiar history of racial politics in the United States”); see also John Dinan, The Adoption of Criminal Disenfranchisement Provisions in the United States: Lessons from the State Constitutional Convention Debates, 19 J. Pol’y Hist. 282, 284 (2007) (“[S]cholars and litigants have argued that these [criminal disenfranchisement] provisions might have been motivated by a desire to reduce the voting power of African Americans, who are generally affected by these policies to a disproportionate extent.”). ↑
  12.  For arguments against disenfranchisement, see, e.g., Elizabeth R. Schiltz, The Ties That Bind Idiots and Infamous Criminals: Disenfranchisement of Persons with Cognitive Impairments, 13 U. St. Thomas L.J. 100, 117 (2016) (questioning the presumption “that mental incapacity is a legitimate reason to deny[] a person the right to vote at all”); Boris Feldman, Note, Mental Disability and the Right to Vote, 88 Yale L.J. 1644, 1645 (1979) (arguing that “states should not disfranchise any persons on the grounds of mental disability”); Debra Parkes, Ballot Boxes Behind Bars: Toward the Repeal of Prisoner Disenfranchisement Laws, 13 Temp. Pol. & C.R. L. Rev. 71, 74 (2003) (arguing that “the ballot box should be opened to all prisoners in the United States”); Carlos M. Portugal, Note, Democracy Frozen in Devonian Amber: The Racial Impact of Permanent Felon Disenfranchisement in Florida, 57 U. Mia. L. Rev. 1317, 1338 (2003) (“[F]elon disenfranchisement is anachronistic.”); Mandeep K. Dhami, Prisoner Disenfranchisement Policy: A Threat to Democracy?, 5 Analyses Soc. Issues & Pub. Pol’y 235, 239–40 (2005) (critiquing common rationales for crime-related disenfranchisement); Pamela S. Karlan, Convictions and Doubts: Retribution, Representation, and the Debate over Felon Disenfranchisement, 56 Stan. L. Rev. 1147, 1149 (2004) [hereinafter Karlan, Convictions and Doubts] (“Once voting is understood as a fundamental right, rather than as a state-created privilege, the essentially punitive nature of criminal disenfranchisement statutes becomes undeniable.”); Note, The Disenfranchisement of Ex-Felons: Citizenship, Criminality, and “The Purity of the Ballot Box,” 102 Harv. L. Rev. 1300, 1301–09 (1989) (arguing that the policy and theoretical rationales for criminal disenfranchisement fail to justify the practice); George P. Fletcher, Disenfranchisement as Punishment: Reflections on the Racial Uses of Infamia, 46 UCLA L. Rev. 1895, 1898 (1999) (critiquing “political disenfranchisement as a technique for reinforcing the branding of felons as the untouchable class of American society”); Alec C. Ewald, “Civil Death”: The Ideological Paradox of Criminal Disenfranchisement Law in the United States, 2002 Wis. L. Rev. 1045, 1049 (arguing that “the modern commitments of both liberalism and republicanism should lead Americans to abandon the practice” of felon disenfranchisement). For arguments to the contrary, see, e.g., Roger Clegg, George T. Conway III & Kenneth K. Lee, The Case Against Felon Voting, 2 U. St. Thomas J.L. & Pub. Pol’y 1, 2 (2008) (“[A]llowing felons to vote is simply problematic both as a legal and a policy matter.”); George Brooks, Felon Disenfranchisement: Law, History, Policy, and Politics, 32 Fordham Urb. L.J. 851, 899 (2005) (“Felon disenfranchisement is plainly constitutional and consistent with the intent of the framers of both the Fourteenth Amendment and the Voting Rights Act.”); Mary Sigler, Defensible Disenfranchisement, 99 Iowa L. Rev. 1725, 1728 (2014) (“[O]ffenders who commit serious felonies are subject to regulatory disenfranchisement because they have violated the civic trust that makes liberal democracy possible.”). ↑
  13.  Beth A. Colgan, Wealth-Based Penal Disenfranchisement, 72 Vand. L. Rev. 55, 60 (2019) (explaining that “wealth-based penal disenfranchisement is sanctioned under the laws of forty-eight states and the District of Columbia, potentially preventing up to a million people or more from voting” (footnote omitted)); Marc Meredith & Michael Morse, Discretionary Disenfranchisement: The Case of Legal Financial Obligations, 46 J. Legal Stud. 309, 310–12, 323–24 (2017) (collecting data on “legal financial obligations” that can burden the right to vote even after sentence completion). ↑
  14.  Lily Verbeck, Note, A Class Left Behind: An Assessment of State Voter Competency Laws and the Disenfranchisement of People with Mental Disabilities, 32 Geo. Mason U. C.R. L.J. 149, 151–52 (2022) (arguing that “courts should strike down general prohibition incompetency laws” and that “laws that allow judges to decide an individual’s capacity to vote should implement a clear and convincing evidence standard”); Neil L. Sobol, Defeating De Facto Disenfranchisement of Criminal Defendants, 75 Fla. L. Rev. 287, 335–55 (2023) (identifying legislative, regulatory, and other mechanisms to address de facto disenfranchisement); Christian A. Johnson, Disenfranchisement, Voter Disqualifications, and Felony Convictions: Searching for State Law Uniformity, 32 Widener Commonwealth L. Rev. 35, 36 (2023) (arguing for greater uniformity in disenfranchisement laws across states); Christopher R. Murray, Note, Felon Disenfranchisement in Alaska and the Voting Rights Act of 1965, 23 Alaska L. Rev. 289, 290 (2006) (examining the validity of disenfranchisement laws under the Voting Rights Act); Manza & Uggen, Locked Out, supra note 11, at 227–28 (identifying “legislative change as the most likely source of policy change” for felon disenfranchisement); Amanda J. Wong, Note, Locked Up, Then Locked Out: The Case for Legislative—Rather than Executive—Felon Disenfranchisement Reform, 104 Corn. L. Rev. 1679, 1684–85 (2019) (surveying state gubernatorial re-enfranchisement actions and encouraging Congress to address disenfranchisement reform); Manoj Mate, Felony Disenfranchisement and Voting Rights Restoration in the States, 22 Nev. L.J. 967, 999–1003 (2022) (providing both short- and long-term strategies for ending felony disenfranchisement, including improved administrative processes, state and federal legislation, reshaping the federal judiciary, and federal constitutional amendment); John R. Cosgrove, Four New Arguments Against the Constitutionality of Felony Disenfranchisement, 26 T. Jefferson L. Rev. 157, 158, 175–95 (2004) (calling for lawyers to raise federal constitutional arguments against felony disenfranchisement); Daniel M. Katz, Article I, Section 4 of the Constitution, The Voting Rights Act, and Restoration of the Congressional Portion of the Election Ballot: The Final Frontier of Felon Disenfranchisement Jurisprudence?, 10 U. Pa. J.L. & Soc. Change 47, 50 (2007) (arguing that the Voting Rights Act is “the proper mechanism to invalidate disenfranchisement statutes”); see also Pamela S. Karlan, Framing the Voting Rights Claims of Cognitively Impaired Individuals, 38 McGeorge L. Rev. 917, 927–30 (2007) (discussing current statutory shortcomings); Hurme & Appelbaum, supra note 5, at 960–74 (formulating a standard for assessing capacity to vote); Richard M. Re & Christopher M. Re, Voting and Vice: Criminal Disenfranchisement and the Reconstruction Amendments, 121 Yale L.J. 1584, 1587–92 (2012) (discussing the promise and limits of claims under the Federal Constitution and the Voting Rights Act); Gabriel J. Chin, Reconstruction, Felon Disenfranchisement, and the Right to Vote: Did the Fifteenth Amendment Repeal Section 2 of the Fourteenth Amendment?, 92 Geo. L.J. 259, 263 (2004) (arguing for courts to reconsider the constitutionality of felony disenfranchisement). ↑
  15.  Cf. Nora V. Demleitner, Criminal Disenfranchisement in State Constitutions: A Marker of Exclusion, Punitiveness, and Fragile Citizenship, 26 Lewis & Clark L. Rev. 531, 533–34 (2022) (“[M]ost of the research on felon disenfranchisement focuses on the combined effect of state laws and constitutions without disaggregating the two different sources of law.”). Professor Nora Demleitner’s article “focuses on the current role of state constitutions in signaling the fragility of citizenship” and largely argues for state constitutional change rather than exploring the existing limits of state constitutions. Id. at 534, 536. Professors Sally Balch Hurme and Paul Appelbaum have also teased out state constitutional provisions from other laws in the context of mental capacity to vote, but their account is primarily descriptive and does not fully explore the ways in which states are overstepping these bounds. See Hurme & Appelbaum, supra note 5, at 934–36. ↑
  16.  See, e.g., Re & Re, supra note 14, at 1663–68 (Voting Rights Act); Katz, supra note 14, at 48–50, 48 n.10 (Voting Rights Act); Chin, supra note 14, at 272–81 (Section 2 of the Fourteenth Amendment and the Fifteenth Amendment); Sobol, supra note 14, at 330–33 (Equal Protection Clause); Karlan, Convictions and Doubts, supra note 12, at 1164–69 (Eighth Amendment); Pamela A. Wilkins, The Mark of Cain: Disenfranchised Felons and the Constitutional No Man’s Land, 56 Syracuse L. Rev. 85, 88 (2005) (Eighth Amendment). ↑
  17.  See Wong, supra note 14, at 1691–92; Meredith & Morse, supra note 13, at 316; Katz, supra note 14, at 49. ↑
  18.  See infra Section I.A. ↑
  19.  See infra Section I.B. ↑
  20.  See Joshua A. Douglas, The Right to Vote Under State Constitutions, 67 Vand. L. Rev. 89, 101–02 (2014) [hereinafter Douglas, The Right to Vote]; see also infra notes 53–54 (discussing amendments since 2014). ↑
  21.  See Douglas, The Right to Vote, supra note 20, at 103. ↑
  22.  Jessica Bulman-Pozen & Miriam Seifter, The Democracy Principle in State Constitutions, 119 Mich. L. Rev. 859, 864 (2021) (emphasis omitted); see also Joshua A. Douglas, The Power of the Electorate Under State Constitutions, 76 Fla. L. Rev. 1679, 1687 (2024) [hereinafter Douglas, The Power of the Electorate] (“The combination of clauses that confer special rights and protections on voters reveals a multilayered right to vote under state constitutions.”). ↑
  23.  The concept of disenfranchisement creep is not necessarily limited to the realms of criminal and competency-related disenfranchisement. For example, where states perpetuate misinformation about voter identification requirements, these practices may similarly amount to a type of de facto disenfranchisement creep. This Article, however, only focuses on disenfranchisement creep in the context of the two areas of criminal and competency-related disenfranchisement, given their unique status in federal law as permissible grounds for disenfranchisement. ↑

  24. Mo. Const. art. VIII, § 2. ↑

  25.  Mo. Rev. Stat. § 115.133(2)(1) (2025); see also Know Your Rights, Mo. State Pub. Def., https://publicdefender.mo.gov/know-your-rights/ [https://perma.cc/FUJ2-CXF4] (last visited Apr. 7, 2026) (explaining that individuals “currently imprisoned for a crime for which [they] have been convicted (felony or misdemeanor)” are not eligible to vote in Missouri). ↑
  26.  Lauren Gill, “A Year of Frustration”: How New Mexico Kept Denying People Voting Rights Despite Reform, Bolts (Oct. 29, 2024), https://boltsmag.org/voting-rights-restoration-‌reform-in-new-mexico/ [https://perma.cc/4QTT-5QLS]. ↑
  27.  Id.; see also infra text accompanying notes 243–50. ↑
  28.  See Jessie Allen, Documentary Disenfranchisement, 86 Tul. L. Rev. 389, 414 (2011); Sobol, supra note 14, at 292; see also Emily Rong Zhang, New Tricks for an Old Dog: Deterring the Vote Through Confusion in Felon Disenfranchisement, 84 Mo. L. Rev. 1037, 1039–40 (2019) (“As reforms slowly erode outright bans on voting for large swathes of the population, felon disenfranchisement laws increasingly suppress voting by confusing eligible voters.”). ↑
  29.  See, e.g., Sobol, supra note 14, at 330–55. ↑
  30.  See supra text accompanying note 26. ↑

Care and Control in Collaborative Courts: Ethnographic Insights into Therapeutic Justice

Collaborative courts, such as drug courts, reentry courts, and veterans treatment courts, have long been hailed by reformers as therapeutic alternatives to the adversarialism of traditional criminal justice. Proponents argue that such courts embody therapeutic jurisprudence, offering accountability and care rather than punishment. Yet this vision often clashes with concerns about control and coerciveness, particularly when defendants are expected to relinquish autonomy in exchange for emotional validation and institutional support. Based on ethnographic observations conducted between 2018 and 2023 in four collaborative courtrooms in Alameda County, California, this Essay explores the pervasive logic of “tough love” in collaborative courts: a model in which compassion and coercion are inextricably intertwined. Judges play quasi-parental roles, often praising vulnerability and “emotional growth” while simultaneously imposing rigid behavioral codes and exercising broad discretionary power. Drawing on Michel Foucault’s and contemporary critics’ analyses of disciplinary institutions, we suggest that these courts function as spaces of moral training and surveillance, governed more by affective control than by legal neutrality. Our findings complicate the celebratory narrative of problem-solving courts: while many defendants express gratitude and some clearly benefit from sustained engagement, the overall picture is ambivalent. The courts’ daily operations often blur the line between supportive guidance and paternalistic overreach. Building on our ethnographic observations and critical literature, we propose several design commitments that can preserve the caring and dignity-affirming features of collaborative courts while mitigating forms of penal overreach.

Introduction

Over the last three decades, collaborative and problem-solving courts have transformed criminal adjudication in the United States and abroad.1 1.See generally Greg Berman & John Feinblatt, Good Courts: The Case for Problem-Solving Justice (2005) (outlining the history, objectives, and achievements of problem-solving courts in the United States); Bruce J. Winick, Therapeutic Jurisprudence and Problem Solving Courts, 30 Fordham Urb. L.J. 1055 (2003) (describing the scope and subject matter of problem-solving courts in general). “Collaborative courts” is largely a regional label, especially used in California, for the same family of problem-solving courts, emphasizing multiagency partnerships (between courts, treatment providers, probation services, and community organizations). See, e.g., Collaborative Courts, Superior Ct. of Cal.: Cnty. of Alameda,https://www.alameda.courts.ca.gov/divisions/collaborative-courts [https://perma.cc‌/QD5Q-5752] (last visited Jan. 6, 2026). We use these two terms interchangeably in this Essay.Show More From the first drug court in Miami to today’s diverse array of modern courts, these forums have promised to address the failures of adversarial processing by integrating treatment, supervision, and judicial engagement.2 2.See, e.g., Pamela M. Casey & David B. Rottman, Problem-Solving Courts: Models and Trends, 26 Just. Sys. J. 35, 37–39, 43–44 (2005).Show More Their ethos is one of accountability with care, offering defendants the possibility of rehabilitation rather than incarceration.3 3.Anthony C. Thompson, Courting Disorder: Some Thoughts on Community Courts, 10 Wash. U. J.L. & Pol’y 63, 75 (2002).Show More Judges and practitioners who devote themselves to this work are often deeply committed to fostering dignity, voice, and opportunities for participants who might otherwise be lost in the revolving door of jail and probation.4 4.See Pamela Casey & David B. Rottman, Therapeutic Jurisprudence in the Courts, 18 Behav. Scis. & L. 445, 449–51 (2000). For an ethnographic portrayal of the dynamics and interactions between professionals and participants in community courtrooms in Israel, see Tali Gal & Hadar Dancig-Rosenberg, “I Am Starting to Believe in the Word ‘Justice’”: Lessons from an Ethnographic Study on Community Courts, 68 Am. J. Compar. L. 376, 409–10 (2020) [hereinafter Gal & Dancig-Rosenberg, The Word Justice].Show More

Yet these same practices raise questions that cannot be overlooked. Collaborative courts rely on intensive monitoring, regular compliance checks, and a distinctive blend of praise and sanction.5 5.See Casey & Rottman, supra note 2, at 37.Show More Judicial tones can range from encouragement to paternalism, with discretion that blurs the line between voluntary support and coercive leverage.6 6.See, e.g., James L. Nolan, Jr., Reinventing Justice: The American Drug Court Movement 102–03 (2001).Show More What appears therapeutic on the surface may, in practice, extend the reach of penal power into participants’ daily lives, governing their employment, housing, and family decisions. In this sense, the very features that make these courts effective at stabilizing participants may also risk reinforcing disciplinary logics of observation, normalization, and control.

This Essay seeks to examine this hypothesis by situating collaborative courts within that tension. Our goal is not to dismiss their accomplishments—indeed, many of the judges, attorneys, and case managers we encountered demonstrate remarkable dedication and compassion—but to render visible the institutional costs and normative trade-offs that accompany this model of justice. We do so by drawing on institutional ethnography of four divisions of the Alameda County Collaborative Courts: the Misdemeanor Drug Court, Felony Drug Court, Veterans Treatment Court, and Reentry Court. Through detailed observations of hearings conducted between 2018 and 2023, we map how dignity and care operate alongside surveillance, coercion, and paternalism.7 7.See infra Parts IV–V.Show More We analyze these practices through the lens of Foucault’s account of disciplinary institutions and contemporary critiques of therapeutic justice.8 8.See infra Section V.A.Show More

The everyday practices we observed in the four Alameda County Collaborative Courts indeed confirm that many participants experience genuine benefits: expressions of empathy from judges, access to services, and tangible legal relief that can alter life trajectories.9 9.See infra Section V.A.Show More Our ethnographic observations revealed, in addition to this positive theme, six recurrent patterns.10 10.See infra Sections V.B–G.Show More First, courts routinely “govern by file,” with case manager reports and treatment notes structuring judicial discretion through routinized observation and dossier-driven decision-making. Second, the courtroom ethos blends care and paternalism: judges praise progress and adopt familial tones while simultaneously imposing corrective expectations and expressing approval of life decisions. Third, compliance demands (such as testing, therapy, and check-ins) often conflict with work, family, and personal health, extending court governance into daily life. Fourth, reliance on external treatment programs produces uneven expertise and diffused oversight, so “being in treatment” can substitute for assessing program quality or fit. Fifth, voluntariness is ambivalent: exiting or refusing the program is formally possible, but it is socially and procedurally costly. Finally, leverage persists: non-completion returns cases to mainstream criminal processing, while completion typically brings relief without jail sanctions—making participation itself function as the operative sanction.

By combining empirical observation with critical theory, our methodology highlights both the promise and the perils of these courts. Ethnography enables us to observe how participants, judges, and staff fulfill their roles in real time, while theoretical framing reveals the structures of power embedded in supportive practices.11 11.See infra Sections V.D–F.Show More The result is a portrait that is intentionally ambivalent: collaborative courts succeed in helping many participants, but they also entrench penal authority in new forms.12 12.See infra Sections V.A, V.D–F.Show More The challenge, we argue, is to preserve the humane dimensions and the meaningful support provided by these courts while remaining attentive to the subtle ways in which care can become control.13 13.See infra Part VI.Show More

This Essay advances the problem-solving courts literature on three fronts. Conceptually, it employs a critical theoretical frame not as a fixed identity or prior disposition but as an alternative epistemology, enabling a fresh read of how care and control intertwine in these courts.14 14.See infra Part II.Show More Unlike work that begins from an a priori celebratory or uniformly skeptical stance, our approach treats the Foucauldian lens as an analytic tool, in dialogue with our own prior studies that employed other, less critical frameworks.15 15.For illustrative examples of our decade-long empirical work on problem-solving courts (especially community courts) conducted under theoretical frameworks that differ from this study’s, see generally Tali Gal & Hadar Dancig-Rosenberg, Evaluating the Israeli Community Courts: Key Issues, Challenges and Lessons, 62 Int’l Annals Criminology 104, 105 (2024) (surveying the “formative and evaluation studies that examined the Israeli [community courts] model from its inception”); Hadar Dancig-Rosenberg & Tali Gal, Success Stories in Community Courts: Listening to Participants’ Voices, 25 Cardozo J. Conflict Resol. 255, 257–58 (2023) (concluding that “success” in community courts is multidimensional, rooted in motivation, family support, court professionals’ care, and community ties, and manifested in self-image, daily functioning, relations with authorities, and worldview); Tamar Ben-Dror, Hadar Dancig-Rosenberg & Tali Gal, Uncharted Success: Expanding Metrics for Community Court Impact, 58 U. Ill. Chi. L. Rev. 625, 625 (2025) (arguing for expanding success metrics beyond recidivism to those related to family/social relationships, trust in institutions, and stability, and showing that participants’ gains also appear among non-completers); Gal & Dancig-Rosenberg, The Word Justice, supra note 4, at 389–91 (construing the communal life of these courts).Show More Methodologically, the study presents a robust, multiyear, multi-docket institutional ethnography across several collaborative courts, enabling us to identify patterns that single-site or short-term studies often overlook.16 16.See infra Part IV.Show More Normatively, it translates these observations into design commitments to make voluntariness substantive and power transparent, thereby bridging celebratory and skeptical camps: we both document tangible benefits and specify the mechanisms by which therapeutic aims can slide into disciplinary power.17 17.See infra Part VI.Show More In so doing, this Essay reframes the evaluative baseline for collaborative courts from “Does recidivism fall?” to “How is power organized, justified, and experienced, and how can it be redesigned?” This approach provides granular, field-grounded guidance to a debate that is often dominated by program metrics and abstract critique.

This Essay proceeds as follows. Part I outlines the rise and working model of problem-solving courts, along with the policy claims that underpin their diffusion. Part II surveys the critical literature, using Foucault’s account of disciplinary institutions to frame concerns about net-widening, “soft” penal control, the shift from judging acts to examining persons, judicial collectivism, and institution-friendly success metrics. Part III explains our institutional ethnography methodology—multisite, courtroom-based observation across four Alameda County dockets. Part IV situates the study within the Alameda Collaborative Courts, detailing the dockets, the eligibility criteria, the supports and relief provided, and the program’s architecture. Part V presents our findings: scenes of care, dignity, and tangible benefits; the routine “examination” of participants and normalization through phases and rituals; the governance of daily life via files, check-ins, and testing; the frictions of time, work, and compliance; and the ambivalent voluntariness of program entry and persistence, including the use of leverage and warrants. Part VI concludes with design commitments to preserve humane, dignity-affirming practices while minimizing penal overreach.

  1.  See generally Greg Berman & John Feinblatt, Good Courts: The Case for Problem-Solving Justice (2005) (outlining the history, objectives, and achievements of problem-solving courts in the United States); Bruce J. Winick, Therapeutic Jurisprudence and Problem Solving Courts, 30 Fordham Urb. L.J. 1055 (2003) (describing the scope and subject matter of problem-solving courts in general). “Collaborative courts” is largely a regional label, especially used in California, for the same family of problem-solving courts, emphasizing multiagency partnerships (between courts, treatment providers, probation services, and community organizations). See, e.g., Collaborative Courts, Superior Ct. of Cal.: Cnty. of Alameda,

    https://www.alameda.courts.ca.gov/divisions/collaborative-courts [https://perma.cc‌/QD5Q-5752] (last visited Jan. 6, 2026). We use these two terms interchangeably in this Essay. ↑

  2.  See, e.g., Pamela M. Casey & David B. Rottman, Problem-Solving Courts: Models and Trends, 26 Just. Sys. J. 35, 37–39, 43–44 (2005). ↑
  3.  Anthony C. Thompson, Courting Disorder: Some Thoughts on Community Courts, 10 Wash. U. J.L. & Pol’y 63, 75 (2002). ↑
  4.  See Pamela Casey & David B. Rottman, Therapeutic Jurisprudence in the Courts, 18 Behav. Scis. & L. 445, 449–51 (2000). For an ethnographic portrayal of the dynamics and interactions between professionals and participants in community courtrooms in Israel, see Tali Gal & Hadar Dancig-Rosenberg, “I Am Starting to Believe in the Word ‘Justice’”: Lessons from an Ethnographic Study on Community Courts, 68 Am. J. Compar. L. 376, 409–10 (2020) [hereinafter Gal & Dancig-Rosenberg, The Word Justice]. ↑
  5.  See Casey & Rottman, supra note 2, at 37. ↑
  6.  See, e.g., James L. Nolan, Jr., Reinventing Justice: The American Drug Court Movement 102–03 (2001). ↑
  7.  See infra Parts IV–V. ↑
  8.  See infra Section V.A. ↑
  9.  See infra Section V.A. ↑
  10.  See infra Sections V.B–G. ↑
  11.  See infra Sections V.D–F. ↑
  12.  See infra Sections V.A, V.D–F. ↑
  13.  See infra Part VI. ↑
  14.  See infra Part II. ↑
  15.  For illustrative examples of our decade-long empirical work on problem-solving courts (especially community courts) conducted under theoretical frameworks that differ from this study’s, see generally Tali Gal & Hadar Dancig-Rosenberg, Evaluating the Israeli Community Courts: Key Issues, Challenges and Lessons, 62 Int’l Annals Criminology 104, 105 (2024) (surveying the “formative and evaluation studies that examined the Israeli [community courts] model from its inception”); Hadar Dancig-Rosenberg & Tali Gal, Success Stories in Community Courts: Listening to Participants’ Voices, 25 Cardozo J. Conflict Resol. 255, 257–58 (2023) (concluding that “success” in community courts is multidimensional, rooted in motivation, family support, court professionals’ care, and community ties, and manifested in self-image, daily functioning, relations with authorities, and worldview); Tamar Ben-Dror, Hadar Dancig-Rosenberg & Tali Gal, Uncharted Success: Expanding Metrics for Community Court Impact, 58 U. Ill. Chi. L. Rev. 625, 625 (2025) (arguing for expanding success metrics beyond recidivism to those related to family/social relationships, trust in institutions, and stability, and showing that participants’ gains also appear among non-completers); Gal & Dancig-Rosenberg, The Word Justice, supra note 4, at 389–91 (construing the communal life of these courts). ↑
  16.  See infra Part IV. ↑

  17.  See infra Part VI. ↑

Therapeutic Justice and the Problem of Penal Welfare

For decades, scholars and activists have decried the punitive turn in U.S. criminal policy and the rise of mass incarceration. Unsurprisingly, then, much ink has been spilled exploring alternative frameworks for responding to risk creation and interpersonal harm. And many commentators have embraced proposals that would repurpose existing criminal legal institutions—replacing a punitive orientation with one grounded in rehabilitation or restorative justice. In this Essay, I turn a critical eye on the project of reimagining criminal courts as therapeutic institutions. Drawing from the literature on penal welfare, I argue that these well-intentioned proposals risk reinforcing a troubling feature of post-Great Society U.S. political economy: viewing the criminal system as a primary site of governance and the right place to solve social problems. Instead, I argue that a turn to therapeutic justice should invite a turn away from criminal legal institutions and a shift to alternative frameworks for redressing harm and managing risk.

Introduction

The footprint of U.S. criminal law is massive. Almost 2 million people are currently incarcerated.1 1.See Wendy Sawyer, Brian Nam-Sonenstein & Peter Wagner, Mass Incarceration: The Whole Pie2026, Prison Pol’y Initiative (Mar. 11, 2026), https://www.prisonpolicy.org/reports‌/pie2026.html [https://perma.cc/E9Y4-XH8T].Show More Another 3.7 million adults are under some form of community supervision (probation, parole, etc.).2 2.See id.Show More Roughly one-third of all adults have a criminal record.3 3.See Criminal Records and Reentry Toolkit, Nat’l Conf. of State Legislatures, https://www.‌ncsl.org/civil-and-criminal-justice/criminal-records-and-reentry-toolkit [https://perma.cc/5G‌EG-LDPA] (last updated Mar. 18, 2025).Show More No one has been able to compile a definitive, comprehensive list of all substantive criminal laws on the books, but recent estimates suggest that there are at least 5,100 federal criminal laws.4 4.GianCarlo Canaparo, Patrick A. McLaughlin, Jonathan Nelson & Liya Palagashvili, Heritage Found., Special Rep. No. 251, Count the Code: Quantifying Federalization of Criminal Statutes 1 (2022), https://www.heritage.org/sites/default/files/2024-05/SR251.pdf [https://perma.cc/3ECY-GA2G].Show More And that figure does not include the massive bodies of state and local criminal law, which serve as the basis for the vast majority of arrests and convictions.5 5.On state and local numbers dramatically outweighing federal numbers, see Sawyer et al., supra note 1.Show More Nor do those figures track the number of ostensibly civil regulations that restrict the liberty of people based on their criminal record.6 6.The closest we have to a comprehensive list of these restrictions can be found in the National Inventory of Collateral Consequences of Conviction. See Welcome to the NICCC, Nat’l Inventory of Collateral Consequences of Conviction, https://niccc.nationalreentryresour‌cecenter.org/ [https://perma.cc/YK6B-GA3J] (last visited Nov. 15, 2025).Show More In short, criminal law plays a massive role in U.S. society—and an even larger role in race-class marginalized communities where enforcement tends to be concentrated.7 7.On criminal law’s role in exacerbating inequality across lines of race and class, see generally Bruce Western, Punishment and Inequality in America (2006).Show More

Nevertheless, the study of U.S. criminal law—at least in U.S. law schools—has historically adopted a relatively narrow focus.8 8.See, e.g., Jeffrie G. Murphy, “In the Penal Colony” and Why I Am Now Reluctant to Teach Criminal Law, 33 Crim. Just. Ethics 72, 75–76 (2014) (emphasizing the disconnect between the Model Penal Code and the realities of mass incarceration); Shaun Ossei-Owusu, Kangaroo Courts, 134 Harv. L. Rev. F. 200, 211 (2021) (critiquing the uncritical posture of U.S. criminal legal education); Alice Ristroph, The Curriculum of the Carceral State, 120 Colum. L. Rev. 1631, 1640 (2020) (critiquing criminal law classes as constructing a coherent, morals-based understanding of the criminal system).Show More Conventional criminal legal scholarship and constitutional criminal procedure insist on strict lines between civil and criminal.9 9.For an extensive discussion of this distinction in both constitutional doctrine and legal thought, see generally Carol S. Steiker, Punishment and Procedure: Punishment Theory and the Criminal-Civil Procedural Divide, 85 Geo. L.J. 775 (1997).Show More And conventional criminal legal theory focuses on individual culpability or social interests in crime prevention, while giving short shrift to the structural forces that shape defendants’ behaviors—and the state’s decisions to police and punish.10 10.See, e.g., Michael T. Cahill, Criminal Law’s “Mediating Rules”: Balancing, Harmonization, or Accident?, 93 Va. L. Rev. In Brief 199, 199 (2007) (critiquing the “tendency of theoretical work in criminal law . . . to focus on . . . questions about the proper justification, scope, and amount of punishment in the abstract, while giving significantly less consideration to the various institutional and procedural aspects of any concrete system of imposing such punishment”); Ahmed A. White, Capitalism, Social Marginality, and the Rule of Law’s Uncertain Fate in Modern Society, 37 Ariz. St. L.J. 759, 786 (2005) (“Conventional accounts of the criminal justice system tend to obscure its social control agenda behind the idea that its origins and functions lie with the prevention and punishment of crime or even the humanitarian reform of offenders.”).Show More

Recent scholarship and advocacy have pushed back on “criminal law exceptionalism” and sought to reverse the siloing impulse that has led to a cramped understanding of the legal institutions and social structures relevant to criminal legal policy.11 11.On criminal law exceptionalism, see Alice Ristroph, Exceptionalism Everywhere: A (Legal) Field Guide to Structural Inequality, 65 Ariz. L. Rev. 921, 952 (2023); Alice Ristroph, An Intellectual History of Mass Incarceration, 60 B.C. L. Rev. 1949, 1953–55 (2019); Benjamin Levin, Criminal Law Exceptionalism, 108 Va. L. Rev. 1381, 1390 (2022). For critiques of this anti-exceptionalist turn, see R.A. Duff, Defending the Realm of Criminal Law, 14 Crim. L. & Phil. 465, 498 (2020); Sandra G. Mayson, The Concept of Criminal Law, 14 Crim. L. & Phil. 447, 449–50 (2020).Show More From a focus on the nexus between criminal law and employment policy,12 12.On the nexus between criminal law and employment policy, see Devah Pager, Marked: Race, Crime, and Finding Work in an Era of Mass Incarceration 28–40 (2007); Erin Hatton, Coerced: Work Under Threat of Punishment 2–5 (2020); Noah D. Zatz, Better Than Jail: Social Policy in the Shadow of Racialized Mass Incarceration, 1 J.L. & Pol. Econ. 212, 212 (2021); Benjamin Levin, Criminal Employment Law, 39 Cardozo L. Rev. 2265, 2268–71 (2018); J.J. Prescott & Sonja B. Starr, Expungement of Criminal Convictions: An Empirical Study, 133 Harv. L. Rev. 2460, 2461 (2020).Show More to an explosion in work on “crimmigration”13 13.On “crimmigration” and the nexus between criminal and immigration enforcement systems, see César Cuauhtémoc García Hernández, Migrating to Prison: America’s Obsession with Locking Up Immigrants 61–68 (2019); Tanya Maria Golash-Boza, Deported: Immigrant Policing, Disposable Labor and Global Capitalism 9–11, 20–21 (2015); Eisha Jain, Policing the Polity, 131 Yale L.J. 1794, 1799–1800 (2022).Show More and the so-called “family regulation system,”14 14.On criminal law and the “family regulation system,” see Dorothy Roberts, Torn Apart: How the Child Welfare System Destroys Black Families—And How Abolition Can Build a Safer World 25–26 (2022); S. Lisa Washington, Survived & Coerced: Epistemic Injustice in the Family Regulation System, 122 Colum. L. Rev. 1097, 1103 (2022).Show More this capacious understanding of what it means to study and reform criminal law is both welcome and necessary.15 15.Indeed, a significant amount of my own scholarship focuses on describing and critiquing a criminal system that extends well beyond the formal institutions of criminal law and punishment. See Benjamin Levin, The Limits of “Punishment,” 114 Calif. L. Rev. (forthcoming 2026) (manuscript at 2–6), https://ssrn.com/abstract=5171917; Benjamin Levin, After the Criminal Justice System, 98 Wash. L. Rev. 899, 900–07 (2023); Benjamin Levin, Rethinking the Boundaries of “Criminal Justice,” 15 Ohio St. J. Crim. L. 619, 635–36 (2018) (book review).Show More Taking the “criminal system” seriously requires both inter- and intradisciplinary engagement with a host of U.S. socio-legal institutions.16 16.For a helpful articulation of this project, see Sharon Dolovich & Alexandra Natapoff, Introduction: Mapping the New Criminal Justice Thinking to The New Criminal Justice Thinking 1, 1 (Sharon Dolovich & Alexandra Natapoff eds., 2017) (“If we are to fix the current criminal system[,] . . . we need a complete and nuanced understanding of what exactly this system is: What social and political institutions, what laws and policies, does it encompass?”); Katherine Beckett & Naomi Murakawa, Mapping the Shadow Carceral State: Toward an Institutionally Capacious Approach to Punishment, 16 Theoretical Criminology 221, 233 (2012).Show More

Viewed against this backdrop, the rise of “therapeutic jurisprudence” or “therapeutic justice” (“TJ”) as a lens for criminal justice policy initially seems appealing.17 17.In this Essay, I use TJ as a shorthand for both “therapeutic jurisprudence” and “therapeutic justice” because I see the two phrases used interchangeably in the literature.Show More According to Bruce Winick, one of the movement’s founders,

Therapeutic jurisprudence is the study of the role of the law as a therapeutic agent. . . . Therapeutic jurisprudence proposes the exploration of ways in which, consistent with principles of justice and other constitutional values, the knowledge, theories, and insights of the mental health and related disciplines can help shape the development of the law. . . . Therapeutic jurisprudence calls for the study of [the law’s] consequences with the tools of the social sciences to identify them and to ascertain whether the law’s antitherapeutic effects can be reduced, and its therapeutic effects enhanced, without subordinating due process and other justice values.18 18.Bruce J. Winick, The Jurisprudence of Therapeutic Jurisprudence, 3 Psych. Pub. Pol’y & L. 184, 185 (1997).Show More

Such a “multidisciplinary perspective” might be helpful for those of us concerned about the narrow gaze of conventional criminal legal thought and policy19 19.David C. Yamada, Therapeutic Jurisprudence: Foundations, Expansion, and Assessment, 75 U. Mia. L. Rev. 660, 679 (2021).Show More—perhaps serving as a way of emphasizing that “structural factors and experiences influence behavior.”20 20.Erin R. Collins, Status Courts, 105 Geo. L.J. 1481, 1485 (2017).Show More

For example, in an explicit effort to reject a narrow conception of how criminal legal institutions operate, socio-legal scholars Hadar Dancig-Rosenberg and Tali Gal have drawn from TJ literatures to

coin[] the term “multi-door criminal justice” to reflect contemporary criminal law and criminal justice systems in post-industrial societies. This metaphor of multi-door criminal justice seeks to evoke the multiplicity of processes, mechanisms, values, and goals that coexist in modern criminal justice systems worldwide. This variety of punitive and non-punitive criminal justice mechanisms includes, for example, arraignment hearings, problem-solving courts, restorative justice processes, diversion programs, and more, each representing a “door” in a multi-door system. Although the various doors differ in their characteristics, prevalence, and outcomes, each may be suitable in different circumstances for different cases—they are all, at the same time, part of a rich, complex system that provides social responses to crime.21 21.Hadar Dancig-Rosenberg & Tali Gal, Guest Editors’ Introduction: Multi-Door Criminal Justice, 22 New Crim. L. Rev. 347, 351 (2019).Show More

Consistent with Dancig-Rosenberg and Gal’s vision, TJ has played a significant role in the development of problem-solving courts—criminal legal institutions that depart from conventional adversarial models and purport to function less as sites of punishment than as sites of general governance.22 22.Scholars consistently trace the logic of problem-solving courts to TJ. See Jessica M. Eaglin, Networked Information Technology in Criminal Law 49 n.208 (Oct. 29, 2025) (unpublished manuscript) (on file with author) (“[D]rug courts and mental health courts, in particular are often discussed as examples of therapeutic jurisprudence in action. As a method, therapeutic jurisprudence adherents often use ‘social science to study the extent to which a legal rule or practice promotes the psychological and physical well-being of the people it affects.’” (quoting Christopher Slobogin, Therapeutic Jurisprudence: Five Dilemmas to Ponder, 1 Psych. Pub. Pol’y & L. 193, 196 (1995))); Eric J. Miller, Embracing Addiction: Drug Courts and the False Promise of Judicial Interventionism, 65 Ohio St. L.J. 1479, 1514 (2004); Michael D. Sousa, Therapeutic Discipline: Drug Courts, Foucault, and the Power of the Normalizing Gaze, 2021 Mich. St. L. Rev. 143, 158–59; Candace McCoy, The Politics of Problem-Solving: An Overview of the Origins and Development of Therapeutic Courts, 40 Am. Crim. L. Rev. 1513, 1513 (2003).Show More

In this respect, TJ interventions tend to reflect an orientation toward “penal welfare”—“welfare administration through criminal law.”23 23.Aya Gruber, Amy J. Cohen & Kate Mogulescu, Penal Welfare and the New Human Trafficking Intervention Courts, 68 Fla. L. Rev. 1333, 1337 n.15, 1393 (2016); see also Miller, supra note 22, at 1483 (arguing that “‘penal welfarism’ . . . has its modern correlate in ‘therapeutic jurisprudence’” (citation omitted)).Show More Penal welfarism, an approach associated with earlier rehabilitationist approaches to criminal law, is defined by “its unquestioning commitment to social engineering; its confidence in the capacities of the state and the possibilities of science; and its unswerving belief that social conditions and individual offenders could be reformed by the interventions of government agencies.”24 24.David Garland, The Culture of Control: Crime and Social Order in Contemporary Society 40 (2001).Show More

For critics of a siloed criminal law and the brutality of the status quo, this new conception of criminal legal institutions might offer some promise. These interventions appear to focus on humanizing criminal defendants—emphasizing social context and people’s needs, not just reflecting punitive impulses.25 25.See Collins, supra note 20, at 1485 (arguing that a “contextualized conceptualization of criminality” should guide criminal justice reform).Show More Much TJ-inflected work recognizes the broader constellation of state functions and services that an individual criminal case might implicate. And many reform efforts informed by TJ pragmatically deploy a preexisting criminal legal infrastructure to engage in social welfare policy.26 26.See Eric J. Miller, The Therapeutic Effects of Managerial Reentry Courts, 20 Fed. Sent’g Rep. 127, 128 (2007) (“[C]ollateral authority enables judges to engage in the managerial side of the therapeutic regime, mustering the local resources of the state to match the offender to those institutions that are able to provide support or treatment or that are necessary to mediate and remediate between offender and society . . . .”); Note, Welfarist Prosecution, 135 Harv. L. Rev. 2151, 2152 (2022) (“[E]ven if the current system of welfarist prosecution is inherently conflicted, it is nonetheless a mitigatory step in the right direction—and certainly preferred to the criminal justice-involved receiving no services, from the penal or welfare states alike.”).Show More

In this Essay, though, I critique the project of reimagining criminal courts as therapeutic institutions. Drawing from the literature on penal welfare, I argue that these well-intentioned proposals risk reinforcing a troubling feature of post-Great Society U.S. political economy: viewing the criminal system as a primary site of governance and the right place to solve social problems. Instead, I argue that recognizing the insights of TJ should invite a turn away from criminal legal institutions and a shift to alternative frameworks for redressing harm and managing risk. If many features of contemporary penal administration are properly understood as “antitherapeutic,”27 27.On the importance of the therapeutic/antitherapeutic distinction in TJ, see Bruce J. Winick & David B. Wexler, Introduction to Judging in a Therapeutic Key: Therapeutic Jurisprudence and the Courts 3, 7 (Bruce J. Winick & David B. Wexler eds., 2003).Show More then any project for reform, transformation, or abolition should involve seeking out noncriminal sites for addressing social problems—finding actors and institutions better equipped to tackle challenges and provide needed services.

To be clear, I am hardly the first person to level critiques at or raise questions about TJ and its relationship to penal welfare. Scholars have noted the indeterminacy of “therapeutic” and “antitherapeutic” as categories,28 28.SeeE. Lea Johnston, Theorizing Mental Health Courts, 89 Wash. U. L. Rev. 519, 531 (2012) (“One challenging aspect of therapeutic jurisprudence is its creators’ steadfast refusal to define ‘therapeutic’ with precision.”); Slobogin, supra note 22, at 203–04, 206–07.Show More and commentators have raised concerns about a shift away from adversarialism and its attendant procedural protections.29 29.See Morris B. Hoffman, Therapeutic Jurisprudence, Neo-Rehabilitationism, and Judicial Collectivism: The Least Dangerous Branch Becomes Most Dangerous, 29 Fordham Urb. L.J. 2063, 2068–69 (2002); Mae C. Quinn, An RSVP to Professor Wexler’s Warm Therapeutic Jurisprudence Invitation to the Criminal Defense Bar: Unable to Join You, Already (Somewhat Similarly) Engaged, 48 B.C. L. Rev. 539, 591 (2007) (“[D]espite its claims to the contrary, TJ runs the risk of gutting worthwhile core values of our current criminal justice system.”).Show More Further, critical commentators have raised concerns about net-widening,30 30.See, e.g., Jessica M. Eaglin, The Drug Court Paradigm, 53 Am. Crim. L. Rev. 595, 631 (2016) (“Recent reforms adopted within the [drug court movement] provide rehabilitative treatment, but they often increase surveillance as well. Increased community supervision extends state control over individuals and exposes low-level offenders to the potential for harsher punishment in the future.”).Show More the individualization of social problems,31 31.See, e.g., Eric J. Miller, Drugs, Courts, and the New Penology, 20 Stan. L. & Pol’y Rev. 417, 435–36 (2009) (“The behavioral emphasis of drug court treatment is a feature of the manner in which therapeutic justice conceives of its ‘client’ population (rather than society) as the primary entity in need of transformation. . . . Therapy, in other words, ignores the bureaucratic and political morass that structures the offender’s situation, in favor of a personalized, exhortative model of individualized suasion.” (citation omitted)).Show More the continued use of threats and coercion,32 32.See Josh Bowers, Contraindicated Drug Courts, 55 UCLA L. Rev. 783, 788 (2008) (“[D]rug courts meet addicts’ inability to exercise self-control and reason not only with therapeutic opportunities to address these deficiencies, but also with concurrent external threats to respond to reason—or else.”); Miller, supra note 22, at 1537 (“[G]enerally, the choice is not between coercion and non-coercion but between differently coercive therapeutic regimes.” (citing Timothy Edwards, The Theory and Practice of Compulsory Drug Treatment in the Criminal Justice System: The Wisconsin Experiment, 2000 Wis. L. Rev. 283, 328–33)); M. Eve Hanan, Talking Back in Court, 96 Wash. L. Rev. 493, 546–47 (2021) (noting “the danger that the therapeutic courtroom suddenly will turn punitive because of the defendant’s failure to comply with court orders”); Evelyn Malavé, Criminal Courteaucracy, 61 Am. Crim. L. Rev. 1205, 1218 (2024) (“Scholars have scrutinized how judges and prosecutors arguably employ the penal technique of performance when they require defendants to complete drug treatment programs or face steep sentences.”); Jessica M. Eaglin, Neorehabilitation and Indiana’s Sentencing Reform Dilemma, 47 Valparaiso U. L. Rev. 867, 881–82 (2013) (“Neorehabilitation permits rhetoric more acceptable to the public while obscuring the reality of offender management rather than criminal justice.”).Show More the reliance on questionable claims to expertise,33 33.SeeAllegra M. McLeod, Decarceration Courts: Possibilities and Perils of a Shifting Criminal Law, 100 Geo. L.J. 1587, 1623 (2012) (“[P]roblems arise when judges [in specialized judicial monitoring courts] believe they possess special expertise about a single best approach to monitoring an issue when in fact there is profound uncertainty as to how best to handle such matters.”); see also Erin Collins, Abolishing the Evidence-Based Paradigm, 48 BYU L. Rev. 403, 425 (2022) (“[I]n the rush to replace a system guided by discretion and intuition with one based in data, we have overlooked important perspectives and key insights about the source and structure of systemic dysfunction. In short, the [evidence-based] paradigm is an overcorrection.”).Show More and the failure to address distributive justice.34 34.See, e.g., M. Eve Hanan, Terror and Tenderness in Criminal Law, 45 Cardozo L. Rev. 581, 644–45 (2023) (“[E]mpathy without structural change collapses into patterns of discrimination and abuse.”); Miller, supra note 31, at 427 (“Whether intentionally or not, then, the politics of therapy competes with and replaces a politics of race and class.”).Show More

My analysis builds on and contributes to this critical literature. In this Essay, I focus on three related critiques of TJ and the logic of penal welfare. The Parts that follow sketch out these critiques in turn. In Part I, I raise questions about institutional capacity: Why should we think that criminal courts and criminal justice actors are particularly well suited to doing large-scale social welfare policy (or even smaller-scale therapeutic treatment)? In Part II, I express concern about institutional growth. I argue that efforts to address the institutional shortcomings described in Part I necessitate massive investments that will in turn grow and entrench criminal legal institutions—a result that should worry penal minimalists, abolitionists, and many critics of the carceral state. Finally, in Part III, I argue that TJ-informed penal welfare interventions risk crowding out noncriminal models for providing services. This approach, I worry, doubles down on decades of “governing through crime”—of turning over critical social functions to institutions of policing, prosecution, and violent social control.35 35.On “governing through crime,” see Jonathan Simon, Governing Through Crime: How the War on Crime Transformed American Democracy and Created a Culture of Fear 1–2 (2007).Show More

  1.  See Wendy Sawyer, Brian Nam-Sonenstein & Peter Wagner, Mass Incarceration: The Whole Pie 2026, Prison Pol’y Initiative (Mar. 11, 2026), https://www.prisonpolicy.org/reports‌/pie2026.html [https://perma.cc/E9Y4-XH8T]. ↑
  2.  See id. ↑
  3.  See Criminal Records and Reentry Toolkit, Nat’l Conf. of State Legislatures, https://www.‌ncsl.org/civil-and-criminal-justice/criminal-records-and-reentry-toolkit [https://perma.cc/5G‌EG-LDPA] (last updated Mar. 18, 2025). ↑
  4.  GianCarlo Canaparo, Patrick A. McLaughlin, Jonathan Nelson & Liya Palagashvili, Heritage Found., Special Rep. No. 251, Count the Code: Quantifying Federalization of Criminal Statutes 1 (2022), https://www.heritage.org/sites/default/files/2024-05/SR251.pdf [https://perma.cc/3ECY-GA2G]. ↑
  5.  On state and local numbers dramatically outweighing federal numbers, see Sawyer et al., supra note 1. ↑
  6.  The closest we have to a comprehensive list of these restrictions can be found in the National Inventory of Collateral Consequences of Conviction. See Welcome to the NICCC, Nat’l Inventory of Collateral Consequences of Conviction, https://niccc.nationalreentryresour‌cecenter.org/ [https://perma.cc/YK6B-GA3J] (last visited Nov. 15, 2025). ↑
  7.  On criminal law’s role in exacerbating inequality across lines of race and class, see generally Bruce Western, Punishment and Inequality in America (2006). ↑
  8.  See, e.g., Jeffrie G. Murphy, “In the Penal Colony” and Why I Am Now Reluctant to Teach Criminal Law, 33 Crim. Just. Ethics 72, 75–76 (2014) (emphasizing the disconnect between the Model Penal Code and the realities of mass incarceration); Shaun Ossei-Owusu, Kangaroo Courts, 134 Harv. L. Rev. F. 200, 211 (2021) (critiquing the uncritical posture of U.S. criminal legal education); Alice Ristroph, The Curriculum of the Carceral State, 120 Colum. L. Rev. 1631, 1640 (2020) (critiquing criminal law classes as constructing a coherent, morals-based understanding of the criminal system). ↑
  9.  For an extensive discussion of this distinction in both constitutional doctrine and legal thought, see generally Carol S. Steiker, Punishment and Procedure: Punishment Theory and the Criminal-Civil Procedural Divide, 85 Geo. L.J. 775 (1997). ↑
  10.  See, e.g., Michael T. Cahill, Criminal Law’s “Mediating Rules”: Balancing, Harmonization, or Accident?, 93 Va. L. Rev. In Brief 199, 199 (2007) (critiquing the “tendency of theoretical work in criminal law . . . to focus on . . . questions about the proper justification, scope, and amount of punishment in the abstract, while giving significantly less consideration to the various institutional and procedural aspects of any concrete system of imposing such punishment”); Ahmed A. White, Capitalism, Social Marginality, and the Rule of Law’s Uncertain Fate in Modern Society, 37 Ariz. St. L.J. 759, 786 (2005) (“Conventional accounts of the criminal justice system tend to obscure its social control agenda behind the idea that its origins and functions lie with the prevention and punishment of crime or even the humanitarian reform of offenders.”). ↑
  11.  On criminal law exceptionalism, see Alice Ristroph, Exceptionalism Everywhere: A (Legal) Field Guide to Structural Inequality, 65 Ariz. L. Rev. 921, 952 (2023); Alice Ristroph, An Intellectual History of Mass Incarceration, 60 B.C. L. Rev. 1949, 1953–55 (2019); Benjamin Levin, Criminal Law Exceptionalism, 108 Va. L. Rev. 1381, 1390 (2022). For critiques of this anti-exceptionalist turn, see R.A. Duff, Defending the Realm of Criminal Law, 14 Crim. L. & Phil. 465, 498 (2020); Sandra G. Mayson, The Concept of Criminal Law, 14 Crim. L. & Phil. 447, 449–50 (2020). ↑
  12.  On the nexus between criminal law and employment policy, see Devah Pager, Marked: Race, Crime, and Finding Work in an Era of Mass Incarceration 28–40 (2007); Erin Hatton, Coerced: Work Under Threat of Punishment 2–5 (2020); Noah D. Zatz, Better Than Jail: Social Policy in the Shadow of Racialized Mass Incarceration, 1 J.L. & Pol. Econ. 212, 212 (2021); Benjamin Levin, Criminal Employment Law, 39 Cardozo L. Rev. 2265, 2268–71 (2018); J.J. Prescott & Sonja B. Starr, Expungement of Criminal Convictions: An Empirical Study, 133 Harv. L. Rev. 2460, 2461 (2020). ↑
  13.  On “crimmigration” and the nexus between criminal and immigration enforcement systems, see César Cuauhtémoc García Hernández, Migrating to Prison: America’s Obsession with Locking Up Immigrants 61–68 (2019); Tanya Maria Golash-Boza, Deported: Immigrant Policing, Disposable Labor and Global Capitalism 9–11, 20–21 (2015); Eisha Jain, Policing the Polity, 131 Yale L.J. 1794, 1799–1800 (2022). ↑
  14.  On criminal law and the “family regulation system,” see Dorothy Roberts, Torn Apart: How the Child Welfare System Destroys Black Families—And How Abolition Can Build a Safer World 25–26 (2022); S. Lisa Washington, Survived & Coerced: Epistemic Injustice in the Family Regulation System, 122 Colum. L. Rev. 1097, 1103 (2022). ↑
  15.  Indeed, a significant amount of my own scholarship focuses on describing and critiquing a criminal system that extends well beyond the formal institutions of criminal law and punishment. See Benjamin Levin, The Limits of “Punishment,” 114 Calif. L. Rev. (forthcoming 2026) (manuscript at 2–6), https://ssrn.com/abstract=5171917; Benjamin Levin, After the Criminal Justice System, 98 Wash. L. Rev. 899, 900–07 (2023); Benjamin Levin, Rethinking the Boundaries of “Criminal Justice,” 15 Ohio St. J. Crim. L. 619, 635–36 (2018) (book review). ↑
  16.  For a helpful articulation of this project, see Sharon Dolovich & Alexandra Natapoff, Introduction: Mapping the New Criminal Justice Thinking to The New Criminal Justice Thinking 1, 1 (Sharon Dolovich & Alexandra Natapoff eds., 2017) (“If we are to fix the current criminal system[,] . . . we need a complete and nuanced understanding of what exactly this system is: What social and political institutions, what laws and policies, does it encompass?”); Katherine Beckett & Naomi Murakawa, Mapping the Shadow Carceral State: Toward an Institutionally Capacious Approach to Punishment, 16 Theoretical Criminology 221, 233 (2012). ↑
  17.  In this Essay, I use TJ as a shorthand for both “therapeutic jurisprudence” and “therapeutic justice” because I see the two phrases used interchangeably in the literature. ↑
  18.  Bruce J. Winick, The Jurisprudence of Therapeutic Jurisprudence, 3 Psych. Pub. Pol’y & L. 184, 185 (1997). ↑
  19.  David C. Yamada, Therapeutic Jurisprudence: Foundations, Expansion, and Assessment, 75 U. Mia. L. Rev. 660, 679 (2021). ↑
  20.  Erin R. Collins, Status Courts, 105 Geo. L.J. 1481, 1485 (2017). ↑
  21.  Hadar Dancig-Rosenberg & Tali Gal, Guest Editors’ Introduction: Multi-Door Criminal Justice, 22 New Crim. L. Rev. 347, 351 (2019). ↑
  22.  Scholars consistently trace the logic of problem-solving courts to TJ. See Jessica M. Eaglin, Networked Information Technology in Criminal Law 49 n.208 (Oct. 29, 2025) (unpublished manuscript) (on file with author) (“[D]rug courts and mental health courts, in particular are often discussed as examples of therapeutic jurisprudence in action. As a method, therapeutic jurisprudence adherents often use ‘social science to study the extent to which a legal rule or practice promotes the psychological and physical well-being of the people it affects.’” (quoting Christopher Slobogin, Therapeutic Jurisprudence: Five Dilemmas to Ponder, 1 Psych. Pub. Pol’y & L. 193, 196 (1995))); Eric J. Miller, Embracing Addiction: Drug Courts and the False Promise of Judicial Interventionism, 65 Ohio St. L.J. 1479, 1514 (2004); Michael D. Sousa, Therapeutic Discipline: Drug Courts, Foucault, and the Power of the Normalizing Gaze, 2021 Mich. St. L. Rev. 143, 158–59; Candace McCoy, The Politics of Problem-Solving: An Overview of the Origins and Development of Therapeutic Courts, 40 Am. Crim. L. Rev. 1513, 1513 (2003). ↑
  23.  Aya Gruber, Amy J. Cohen & Kate Mogulescu, Penal Welfare and the New Human Trafficking Intervention Courts, 68 Fla. L. Rev. 1333, 1337 n.15, 1393 (2016); see also Miller, supra note 22, at 1483 (arguing that “‘penal welfarism’ . . . has its modern correlate in ‘therapeutic jurisprudence’” (citation omitted)). ↑
  24.  David Garland, The Culture of Control: Crime and Social Order in Contemporary Society 40 (2001). ↑
  25.  See Collins, supra note 20, at 1485 (arguing that a “contextualized conceptualization of criminality” should guide criminal justice reform). ↑
  26.  See Eric J. Miller, The Therapeutic Effects of Managerial Reentry Courts, 20 Fed. Sent’g Rep. 127, 128 (2007) (“[C]ollateral authority enables judges to engage in the managerial side of the therapeutic regime, mustering the local resources of the state to match the offender to those institutions that are able to provide support or treatment or that are necessary to mediate and remediate between offender and society . . . .”); Note, Welfarist Prosecution, 135 Harv. L. Rev. 2151, 2152 (2022) (“[E]ven if the current system of welfarist prosecution is inherently conflicted, it is nonetheless a mitigatory step in the right direction—and certainly preferred to the criminal justice-involved receiving no services, from the penal or welfare states alike.”). ↑
  27.  On the importance of the therapeutic/antitherapeutic distinction in TJ, see Bruce J. Winick & David B. Wexler, Introduction to Judging in a Therapeutic Key: Therapeutic Jurisprudence and the Courts 3, 7 (Bruce J. Winick & David B. Wexler eds., 2003). ↑
  28.  See E. Lea Johnston, Theorizing Mental Health Courts, 89 Wash. U. L. Rev. 519, 531 (2012) (“One challenging aspect of therapeutic jurisprudence is its creators’ steadfast refusal to define ‘therapeutic’ with precision.”); Slobogin, supra note 22, at 203–04, 206–07. ↑
  29.  See Morris B. Hoffman, Therapeutic Jurisprudence, Neo-Rehabilitationism, and Judicial Collectivism: The Least Dangerous Branch Becomes Most Dangerous, 29 Fordham Urb. L.J. 2063, 2068–69 (2002); Mae C. Quinn, An RSVP to Professor Wexler’s Warm Therapeutic Jurisprudence Invitation to the Criminal Defense Bar: Unable to Join You, Already (Somewhat Similarly) Engaged, 48 B.C. L. Rev. 539, 591 (2007) (“[D]espite its claims to the contrary, TJ runs the risk of gutting worthwhile core values of our current criminal justice system.”). ↑
  30.  See, e.g., Jessica M. Eaglin, The Drug Court Paradigm, 53 Am. Crim. L. Rev. 595, 631 (2016) (“Recent reforms adopted within the [drug court movement] provide rehabilitative treatment, but they often increase surveillance as well. Increased community supervision extends state control over individuals and exposes low-level offenders to the potential for harsher punishment in the future.”). ↑
  31.  See, e.g., Eric J. Miller, Drugs, Courts, and the New Penology, 20 Stan. L. & Pol’y Rev. 417, 435–36 (2009) (“The behavioral emphasis of drug court treatment is a feature of the manner in which therapeutic justice conceives of its ‘client’ population (rather than society) as the primary entity in need of transformation. . . . Therapy, in other words, ignores the bureaucratic and political morass that structures the offender’s situation, in favor of a personalized, exhortative model of individualized suasion.” (citation omitted)). ↑
  32.  See Josh Bowers, Contraindicated Drug Courts, 55 UCLA L. Rev. 783, 788 (2008) (“[D]rug courts meet addicts’ inability to exercise self-control and reason not only with therapeutic opportunities to address these deficiencies, but also with concurrent external threats to respond to reason—or else.”); Miller, supra note 22, at 1537 (“[G]enerally, the choice is not between coercion and non-coercion but between differently coercive therapeutic regimes.” (citing Timothy Edwards, The Theory and Practice of Compulsory Drug Treatment in the Criminal Justice System: The Wisconsin Experiment, 2000 Wis. L. Rev. 283, 328–33)); M. Eve Hanan, Talking Back in Court, 96 Wash. L. Rev. 493, 546–47 (2021) (noting “the danger that the therapeutic courtroom suddenly will turn punitive because of the defendant’s failure to comply with court orders”); Evelyn Malavé, Criminal Courteaucracy, 61 Am. Crim. L. Rev. 1205, 1218 (2024) (“Scholars have scrutinized how judges and prosecutors arguably employ the penal technique of performance when they require defendants to complete drug treatment programs or face steep sentences.”); Jessica M. Eaglin, Neorehabilitation and Indiana’s Sentencing Reform Dilemma, 47 Valparaiso U. L. Rev. 867, 881–82 (2013) (“Neorehabilitation permits rhetoric more acceptable to the public while obscuring the reality of offender management rather than criminal justice.”). ↑
  33.  See Allegra M. McLeod, Decarceration Courts: Possibilities and Perils of a Shifting Criminal Law, 100 Geo. L.J. 1587, 1623 (2012) (“[P]roblems arise when judges [in specialized judicial monitoring courts] believe they possess special expertise about a single best approach to monitoring an issue when in fact there is profound uncertainty as to how best to handle such matters.”); see also Erin Collins, Abolishing the Evidence-Based Paradigm, 48 BYU L. Rev. 403, 425 (2022) (“[I]n the rush to replace a system guided by discretion and intuition with one based in data, we have overlooked important perspectives and key insights about the source and structure of systemic dysfunction. In short, the [evidence-based] paradigm is an overcorrection.”). ↑
  34.  See, e.g., M. Eve Hanan, Terror and Tenderness in Criminal Law, 45 Cardozo L. Rev. 581, 644–45 (2023) (“[E]mpathy without structural change collapses into patterns of discrimination and abuse.”); Miller, supra note 31, at 427 (“Whether intentionally or not, then, the politics of therapy competes with and replaces a politics of race and class.”). ↑

  35.  On “governing through crime,” see Jonathan Simon, Governing Through Crime: How the War on Crime Transformed American Democracy and Created a Culture of Fear 1–2 (2007). ↑

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