Home Slideshow

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). ↑

Wonderland Sentencing: Therapeutic Perspectives on Pretrial Provisional Sentences

In Alice’s Adventures in Wonderland, the Knave of Hearts is accused of stealing tarts. The Queen of Hearts insists that they should “[s]entence [the Knave] first” and hear the verdict afterwards. Alice derides “[t]he idea of having the sentence first” because, of course, nothing would be more absurd. In this Essay, I defend that absurd idea, at least provisionally.

While we certainly should not punish someone prior to conviction, we should carefully consider the benefits of “wonderland sentencing,” in which those accused of crimes are given provisional sentences prior to the decision to proceed to trial. Doing so enables defendants to make better informed, fairer decisions about whether and under what circumstances to plead guilty. The proposal supports goals of therapeutic jurisprudence by (1) reducing prosecutorial leverage that many legal scholars consider both excessive and a cause of disproportional sentencing; (2) allowing defendants to be and feel heard by an impartial judge; and (3) providing defendants better information about their future sentencing liability, not only as it affects plea decisions, but also as it affects the very stressful period before their cases are resolved.

We give defendants very limited information prospectively about punishments for various crimes. Wonderland sentences would help correct our general failure to provide advance notice of the consequences of criminal conduct. While wonderland sentencing is just one of many therapeutic policy changes we could implement, given that approximately ninety-five percent of non-dismissed cases are resolved by plea bargains, wonderland sentencing has the potential to do a lot of good for a lot of people.

Introduction

In Alice’s Adventures in Wonderland, the Knave of Hearts is accused of stealing tarts.1 1.Lewis Carroll, Alice’s Adventures in Wonderland 165–66 (London, MacMillan & Co. 1866).Show More The Queen of Hearts insists that they should “[s]entence [the Knave] first” and hear the verdict afterwards.2 2.Id. at 187.Show More Alice derides “[t]he idea of having the sentence first” in an exchange scholars frequently cite to illustrate an extraordinarily absurd attempt at justice.3 3.Id.; see, e.g., Charles H. Gustafson, Judicial Review of Jeopardy Tax Collection: Sentence First, Verdict Afterwards, 26 Case W. Rsrv. L. Rev. 315, 315–16, 315 n.* (1976); Robert S. Pasley, Sentence First—Verdict Afterwards: Dishonorable Discharges Without Trial by Court-Martial?, 41 Corn. L.Q. 545, 545–47 (1956).Show More In this Essay, I defend it (at least provisionally).

Of course, we shouldn’t punish anyone prior to conviction.4 4.But cf. Saul Smilansky,Determinism and Prepunishment: The Radical Nature of Compatibilism, 67 Analysis 347, 347–48 (2007) (arguing that the compatibilist view of free will held by many philosophers leads to the conclusion that we ought to pre-punish).Show More But there is much to be said for what I call “wonderland sentencing,” in which those accused of crimes are told, prior to deciding whether to plead guilty, what their sentence would likely be if convicted at trial. Doing so could enable defendants to make better informed, fairer, and more socially advantageous decisions about whether and under what circumstances to plead guilty.

There are many possible variations on wonderland sentencing. My goal isn’t to settle the details of one particular approach. Rather, I lay out the benefits of wonderland sentencing in general terms and then consider several ways to fill in the details, keeping in mind that any particular approach will have to coordinate with the varied sentencing laws in existing jurisdictions.

The impetus for wonderland sentencing comes from what is typically the most important decision defendants must make about their cases: whether to plead guilty in exchange for a lighter sentence. The decision can be extraordinarily difficult because defendants have limited relevant information. For example, they don’t know exactly what evidence the prosecution would introduce or how convincing it would be to potential jurors. They also don’t know how well their own witnesses would testify on their behalf.

Most importantly, however, even if defendants knew all the information that would be revealed at trial, they would still lack critical information about sentence severity. In many jurisdictions, judges have wide sentencing discretion, leaving defendants uncertain about how long their sentences are likely to be.5 5.See, e.g., United States v. Jackson, 835 F.2d 1195, 1197 (7th Cir. 1987) (recognizing the broad sentencing discretion typically afforded to judges in non-guideline jurisdictions).Show More In others, there may be sentencing guidelines that limit judicial discretion.6 6.See, e.g., 18 U.S.C. § 3553(b)(1) (advising federal courts to ordinarily impose a sentence within the guideline range); Minn. Sent’g Guidelines & Comment. § 1.A (Minn. Sent’g Guidelines Comm’n 2024).Show More But even in those jurisdictions, judges still have significant sentencing discretion and are often called upon to interpret sentencing guidelines or the application of maxima and minima in ways that are hard for defense counsel to predict.7 7.Cf. United States v. Booker, 543 U.S. 220, 245, 250–51 (2005) (holding the federal sentencing guidelines to be advisory and emphasizing the importance of judicial discretion).Show More

Even when extraordinarily harsh sentences are unlikely, they can still weigh on a defendant’s decision-making.8 8.There is evidence in many domains, including mock criminal justice contexts, that vividly presented numbers can anchor people’s estimates and preferences. See, e.g., Stephanie A. Cardenas, Charged Up and Anchored Down: A Test of Two Pathways to Judgmental and Decisional Anchoring Biases in Plea Negotiations, 29 Psych. Pub. Pol’y & L. 435, 435–36 (2023) (discussing how the willingness to plead guilty or recommend guilty pleas of mock defendants and defense attorneys can be anchored by harsh potential sentences); Roland Imhoff & Christoph Nickolaus, Combined Anchoring: Prosecution and Defense Claims as Sequential Anchors in the Courtroom, 26 Legal & Criminological Psych. 215, 215, 223–24 (2021) (finding that law student experimental subjects were anchored in their mock sentencing determinations by the recommendations of both the prosecution and the defense).Show More For example, in 2024, Maine doctor Merideth Norris was found guilty of overprescribing painkillers.9 9.Shawn P. Sullivan, Kennebunk Doctor Convicted on Multiple Counts of Illegally Distributing Opioids, Portsmouth Herald (June 24, 2024, at 11:23 ET), https://www.seacoasto‌nline.com/story/news/local/york-star/2024/06/24/kennebunk-maine-doctor-merideth-norris-c‌onvicted-of-unlawfully-distributing-opioids/74191342007/ [https://perma.cc/K6LG-CPLC].Show More She was convicted on fifteen counts of unlawfully distributing controlled substances and faced a maximum of twenty years’ incarceration on each count.10 10.Id.Show More Predictably, Dr. Norris was said to face up to three hundred years’ incarceration.11 11.Id.Show More When she was ultimately sentenced, however, she received no prison time.12 12.Emily Allen, Kennebunk Doctor Will Not Serve Prison Time for Overprescribing Opioids, Portland Press Herald (May 16, 2025), https://www.pressherald.com/2025/05/15/ken‌nebunkport-doctor-will-not-serve-jail-time-for-overprescribing-opioids [https://perma.cc/7G‌4M-4C9R].Show More

In reality, Dr. Norris was never going to spend three hundred years incarcerated, and almost certainly, her attorney gave her more realistic estimates. But defendants can be traumatized simply by hearing that they face such extreme sentences. Federal judges are required to notify defendants of the maximum sentence they face under the law, but not the sentence the judge expects to assign or the sentence she considers the highest she would be likely to assign if the case were to proceed to a verdict at trial.13 13.See Fed. R. Crim. P. 11(b)(1)(H).Show More Knowledge of theoretical sentencing maxima may be particularly influential and misleading when clients distrust their often court-appointed attorneys. Moreover, even with attorney estimates, defendants may face wide plausible sentencing ranges.

Prosecutors pressure defendants to plead guilty not only by threatening long sentences but also by making strategic use of uncertainty. Rational choice theory suggests that the uncertainty of sentences will drive risk-averse defendants to plead guilty to avoid trial. The more risk-averse the defendant, the more we expect risk to drive guilty pleas. Moreover, given that risk tolerance is associated with criminal and other antisocial behaviors,14 14.SeeTim Friehe & Hannah Schildberg-Hörisch, Predicting Norm Enforcement: The Individual and Joint Predictive Power of Economic Preferences, Personality, and Self-Control, 45 Eur. J.L. & Econ. 127, 137–38 (2018); see also Thomas Epper et al., Preferences Predict Who Commits Crime Among Young Men, PNAS, Jan. 31, 2022, at 1, 5 (finding a statistically significant positive correlation between risk tolerance and criminality for property crimes, though not for violent, drug, or sexual crimes).Show More greater uncertainty at sentencing is likely to put more pressure on prosocial defendants to plead guilty than antisocial defendants—precisely the opposite of the direction we seek. Since prosocial defendants are less likely to be guilty than antisocial defendants as a general rule, uncertainty at sentencing has the perverse effect of pushing innocent defendants to plead guilty with greater force than it pushes guilty defendants to do the same.15 15.See Robert E. Scott & William J. Stuntz, Plea Bargaining as Contract, 101 Yale L.J. 1909, 1948–49 (1992).Show More Wonderland sentencing provides a way to make sentences fairer and reduce erroneous convictions by allowing defendants to make less risky, better informed decisions about whether to plead guilty.

Imagine if we lived in a world of wonderland sentencing, where defendants made plea bargaining decisions with relatively accurate potential sentence information. In such a world, I suspect, a proposal to eliminate wonderland sentencing and hide such information from defendants would strike us as about as absurd as the Queen of Hearts’s proposal. And unlike some prior proposals to give judges a larger role in plea processes,16 16.See, e.g., Daniel S. McConkie, Judges as Framers of Plea Bargaining, 26 Stan. L. & Pol’y Rev. 61, 65 (2015).Show More wonderland sentencing is unlikely to offend rules against judicial participation in plea bargaining. In fact, there may be no legal impediments to the implementation of wonderland sentencing; judges could start the process today, and it probably already occurs from time to time.

In Part I, I discuss in more detail how wonderland sentencing could work. In Part II, I analyze wonderland sentencing from traditional retributivist and consequentialist perspectives. I also discuss how those perspectives could be modified to address what I call “therapeutic retributivism” and “therapeutic consequentialism.” I conclude that while it is too soon to decide that wonderland sentencing will necessarily improve the criminal legal system, we have more than enough reason to pilot studies to gather more information.

  1.  Lewis Carroll, Alice’s Adventures in Wonderland 165–66 (London, MacMillan & Co. 1866). ↑
  2.  Id. at 187. ↑
  3.  Id.; see, e.g., Charles H. Gustafson, Judicial Review of Jeopardy Tax Collection: Sentence First, Verdict Afterwards, 26 Case W. Rsrv. L. Rev. 315, 315–16, 315 n.* (1976); Robert S. Pasley, Sentence First—Verdict Afterwards: Dishonorable Discharges Without Trial by Court-Martial?, 41 Corn. L.Q. 545, 545–47 (1956). ↑
  4.  But cf. Saul Smilansky, Determinism and Prepunishment: The Radical Nature of Compatibilism, 67 Analysis 347, 347–48 (2007) (arguing that the compatibilist view of free will held by many philosophers leads to the conclusion that we ought to pre-punish). ↑
  5.  See, e.g., United States v. Jackson, 835 F.2d 1195, 1197 (7th Cir. 1987) (recognizing the broad sentencing discretion typically afforded to judges in non-guideline jurisdictions). ↑
  6.  See, e.g., 18 U.S.C. § 3553(b)(1) (advising federal courts to ordinarily impose a sentence within the guideline range); Minn. Sent’g Guidelines & Comment. § 1.A (Minn. Sent’g Guidelines Comm’n 2024). ↑
  7.  Cf. United States v. Booker, 543 U.S. 220, 245, 250–51 (2005) (holding the federal sentencing guidelines to be advisory and emphasizing the importance of judicial discretion). ↑
  8.  There is evidence in many domains, including mock criminal justice contexts, that vividly presented numbers can anchor people’s estimates and preferences. See, e.g., Stephanie A. Cardenas, Charged Up and Anchored Down: A Test of Two Pathways to Judgmental and Decisional Anchoring Biases in Plea Negotiations, 29 Psych. Pub. Pol’y & L. 435, 435–36 (2023) (discussing how the willingness to plead guilty or recommend guilty pleas of mock defendants and defense attorneys can be anchored by harsh potential sentences); Roland Imhoff & Christoph Nickolaus, Combined Anchoring: Prosecution and Defense Claims as Sequential Anchors in the Courtroom, 26 Legal & Criminological Psych. 215, 215, 223–24 (2021) (finding that law student experimental subjects were anchored in their mock sentencing determinations by the recommendations of both the prosecution and the defense). ↑
  9.  Shawn P. Sullivan, Kennebunk Doctor Convicted on Multiple Counts of Illegally Distributing Opioids, Portsmouth Herald (June 24, 2024, at 11:23 ET), https://www.seacoasto‌nline.com/story/news/local/york-star/2024/06/24/kennebunk-maine-doctor-merideth-norris-c‌onvicted-of-unlawfully-distributing-opioids/74191342007/ [https://perma.cc/K6LG-CPLC]. ↑
  10.  Id. ↑
  11.  Id. ↑
  12.  Emily Allen, Kennebunk Doctor Will Not Serve Prison Time for Overprescribing Opioids, Portland Press Herald (May 16, 2025), https://www.pressherald.com/2025/05/15/ken‌nebunkport-doctor-will-not-serve-jail-time-for-overprescribing-opioids [https://perma.cc/7G‌4M-4C9R]. ↑
  13.  See Fed. R. Crim. P. 11(b)(1)(H). ↑
  14.  See Tim Friehe & Hannah Schildberg-Hörisch, Predicting Norm Enforcement: The Individual and Joint Predictive Power of Economic Preferences, Personality, and Self-Control, 45 Eur. J.L. & Econ. 127, 137–38 (2018); see also Thomas Epper et al., Preferences Predict Who Commits Crime Among Young Men, PNAS, Jan. 31, 2022, at 1, 5 (finding a statistically significant positive correlation between risk tolerance and criminality for property crimes, though not for violent, drug, or sexual crimes). ↑
  15.  See Robert E. Scott & William J. Stuntz, Plea Bargaining as Contract, 101 Yale L.J. 1909, 1948–49 (1992). ↑

  16.  See, e.g., Daniel S. McConkie, Judges as Framers of Plea Bargaining, 26 Stan. L. & Pol’y Rev. 61, 65 (2015). ↑

©Virginia Law Review Association. All rights reserved.