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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). ↑

Survivors’ Justice

Nearly a decade ago, the #MeToo movement surfaced deep failings in our criminal and civil legal systems. But the work of retrofitting these systems to meet the needs of victims remains largely incomplete. To that end, survivors’ conceptions of justice are of profound importance for theorists and reformers alike. Centering survivors recasts the virtues of restorative justice processes while clarifying the critical functions ideally served by traditional legal systems. Rather than forsaking reliance on these systems, I argue for their institutional redesign. To anchor this shift, I identify three overarching principles: access, control, and support. I close by reflecting on the promise of justice reimagined.

Introduction

Trauma has become central to conventional understandings of sexual abuse and its aftermath.1 1.See Bessel A. van der Kolk, The Body Keeps the Score: Brain, Mind, and Body in the Healing of Trauma 1–2 (2014) (“Trauma, by definition, is unbearable and intolerable. Most rape victims, combat soldiers, and children who have been molested become so upset when they think about what they experienced that they try to push it out of their minds, trying to act as if nothing happened, and move on. It takes tremendous energy to keep functioning while carrying the memory of terror, and the shame of utter weakness and vulnerability.”).Show More But our justice systems, criminal and civil, remain mostly untouched by this paradigm shift. Much the same can be said of legal discourse surrounding abuse, which has yet to interrogate the idea of trauma, much less its structural features. When trauma does crop up in the legal context, the dominant conception is highly individualistic, deployed to explain—often in pathological terms—ostensibly unusual victim behaviors that deviate from expectations.2 2.See, e.g., Deborah Tuerkheimer, Victim, Reconstructed: Sex Crimes Experts and the New Rape Paradigm, 2024 U. Ill. L. Rev. 55, 68–82 [hereinafter Tuerkheimer, Victim, Reconstructed] (critiquing the construct of “rape trauma syndrome” and its evidentiary treatment).Show More

This defect is not isolated: across the board, the law abstracts sexual violence from social context.3 3.See id. at 78 (explaining that “[w]ith few exceptions, the criminalization of gender violence rests on the faulty premise that context does not matter”).Show More When it comes to trauma, this legal tendency is buttressed by a cultural attraction to neurobiological accounts of phenomena that might otherwise be dismissed.4 4.As noted by Bessel van der Kolk, author of the wildly popular The Body Keeps the Score, “In the culture right now, if it’s based on the brain, it’s real . . . . Everything else is woozy stuff.” Ellen Barry, She Redefined Trauma. Then Trauma Redefined Her., N.Y. Times (Apr. 25, 2023) (quoting Bessel van der Kolk), https://www.nytimes.com/2023/04/24/health/judith‌-herman-trauma.html; seeDanielle Carr, Tell Me Why It Hurts: How Bessel van der Kolk’s Once Controversial Theory of Trauma Became the Dominant Way We Make Sense of Our Lives, N.Y. Mag. (July 31, 2023), https://nymag.com/intelligencer/article/trauma-bessel-van-der-kolk-the-body-keeps-the-score-profile.html. Because sexual trauma is particularly unlikely to register as “real,” recognition of its neurobiological features has served an important function, enabling survivors to offer tangible evidence of their injury and its impact without needing to contest entrenched views of what counts as harm. See van der Kolk, supra note 1, at 21 (“Since the early 1990s brain-imaging tools have started to show us what actually happens inside the brains of traumatized people. . . . We have learned that trauma is not just an event that took place sometime in the past; it is also the imprint left by that experience on mind, brain, and body.”).Show More But an individualized, neuroscientific account of trauma is, at best, partial.5 5.See Judith Lewis Herman, Trauma and Recovery: The Aftermath of Violence—From Domestic Abuse to Political Terror33 (1997) (“Traumatic events overwhelm the ordinary systems of care that give people a sense of control, connection, and meaning.”); see also id. at 133 (“The core experiences of psychological trauma are disempowerment and disconnection from others. Recovery, therefore, is based upon the empowerment of the survivor and the creation of new connections.”).Show More Trauma cannot be identified by biological markers alone, nor can trauma be theorized without regard for the social hierarchies that shape its experience and its meaning.

Contextualizing sexual trauma, along with the sexual violation that precedes it, opens new ways of thinking about the meaning of justice. Because sexual violence has deep roots in a culture that has long enabled it, survivors need meaningful action on the part of the collective to remedy their violation. As psychiatrist Judith Herman writes, where “trauma originates in a fundamental injustice, then full healing must require repair through some measure of justice from the larger community.”6 6.Judith L. Herman, Truth and Repair: How Trauma Survivors Envision Justice 3 (2023). In other words, “[i]f trauma is truly a social problem, and indeed it is, then recovery cannot be simply a private, individual matter.” Id.; see also id. at 1 (arguing that “[b]ecause the violence at the source of trauma aims at domination and oppression,” recovery must involve the restoration of social power).Show More

Building on this insight, the remainder of this Essay proceeds in three parts. Part I draws on Herman’s groundbreaking work to explain how survivors envision justice and why justice matters for healing. Part II applies this framework to restorative justice processes, assessing both their virtues and shortcomings. Part III leverages the discussion of restorative justice in order to offer a novel set of principles for operationalizing survivors’ justice within existing legal systems.

  1.  See Bessel A. van der Kolk, The Body Keeps the Score: Brain, Mind, and Body in the Healing of Trauma 1–2 (2014) (“Trauma, by definition, is unbearable and intolerable. Most rape victims, combat soldiers, and children who have been molested become so upset when they think about what they experienced that they try to push it out of their minds, trying to act as if nothing happened, and move on. It takes tremendous energy to keep functioning while carrying the memory of terror, and the shame of utter weakness and vulnerability.”). ↑
  2.  See, e.g., Deborah Tuerkheimer, Victim, Reconstructed: Sex Crimes Experts and the New Rape Paradigm, 2024 U. Ill. L. Rev. 55, 68–82 [hereinafter Tuerkheimer, Victim, Reconstructed] (critiquing the construct of “rape trauma syndrome” and its evidentiary treatment). ↑
  3.  See id. at 78 (explaining that “[w]ith few exceptions, the criminalization of gender violence rests on the faulty premise that context does not matter”). ↑
  4.  As noted by Bessel van der Kolk, author of the wildly popular The Body Keeps the Score, “In the culture right now, if it’s based on the brain, it’s real . . . . Everything else is woozy stuff.” Ellen Barry, She Redefined Trauma. Then Trauma Redefined Her., N.Y. Times (Apr. 25, 2023) (quoting Bessel van der Kolk), https://www.nytimes.com/2023/04/24/health/judith‌-herman-trauma.html; see Danielle Carr, Tell Me Why It Hurts: How Bessel van der Kolk’s Once Controversial Theory of Trauma Became the Dominant Way We Make Sense of Our Lives, N.Y. Mag. (July 31, 2023), https://nymag.com/intelligencer/article/trauma-bessel-van-der-kolk-the-body-keeps-the-score-profile.html. Because sexual trauma is particularly unlikely to register as “real,” recognition of its neurobiological features has served an important function, enabling survivors to offer tangible evidence of their injury and its impact without needing to contest entrenched views of what counts as harm. See van der Kolk, supra note 1, at 21 (“Since the early 1990s brain-imaging tools have started to show us what actually happens inside the brains of traumatized people. . . . We have learned that trauma is not just an event that took place sometime in the past; it is also the imprint left by that experience on mind, brain, and body.”). ↑
  5.  See Judith Lewis Herman, Trauma and Recovery: The Aftermath of Violence—From Domestic Abuse to Political Terror 33 (1997) (“Traumatic events overwhelm the ordinary systems of care that give people a sense of control, connection, and meaning.”); see also id. at 133 (“The core experiences of psychological trauma are disempowerment and disconnection from others. Recovery, therefore, is based upon the empowerment of the survivor and the creation of new connections.”). ↑
  6.  Judith L. Herman, Truth and Repair: How Trauma Survivors Envision Justice 3 (2023). In other words, “[i]f trauma is truly a social problem, and indeed it is, then recovery cannot be simply a private, individual matter.” Id.; see also id. at 1 (arguing that “[b]ecause the violence at the source of trauma aims at domination and oppression,” recovery must involve the restoration of social power). ↑
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