Therapeutic Justice and the Problem of Penal Welfare

*Professor of Law, Washington University in St. Louis. Many thanks to Hadar Dancig-Rosenberg for inviting me to participate in this Symposium and to the editors of the Virginia Law Review for excellent editorial assistance.Show More

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). ↑