Therapeutic jurisprudence: a possible prescription for a hypertensive criminal justice system

Therapeutic jurisprudence: a possible prescription for a hypertensive criminal justice system

Introduction: The current, or traditional, justice system in Australia is deteriorating, with overcrowded prisons and rising recidivism rates. Therapeutic jurisprudence and restorative justice have both shown promise as alternatives to the retributive nature of traditional justice. Restorative justice provides interventions that seek offender accountability and reparation, victim participation and restoration to survivor, and community involvement and healing; the methods have borrowed from Indigenous models. Therapeutic jurisprudence has the ability to handle diverse crimes more effectively than the traditional approach. It takes a problem-solving, therapeutic stance, based on wellbeing as its core tenet, and making use of evidence-based psychological theories such as pragmatic psychology to operate effectively through existing legal structures to utilise its resources to bring about a much-needed transformation to an ailing judicial system.

Purpose: The purpose of this thesis is to make a comparison of the three judicial approaches—traditional justice, restorative justice, and therapeutic jurisprudence—to explore the current model of Australia’s judicial system, and thereby develop a proposed model for long-overdue change.

Aim: The overarching aim of this thesis is to examine the current judicial system and provide a greater understanding of alternative approaches to traditional justice system retribution and a system based on the wellbeing of participants.

Significance: Despite a wealth of articles on restorative justice and therapeutic jurisprudence, few decisive statements have been made for a fundamental change in the judicial system. This thesis addresses this gap by proposing a conceptual model with therapeutic justice and restorative justice as its key drivers.

Proposition: The overall value of therapeutic jurisprudence and restorative justice lead to greater wellbeing, higher rehabilitation, and lower levels of recidivism than traditional justice does.

Methods: This thesis applied a qualitative approach to research based on a Constructivist philosophy and making use of thematic analysis in its design. This design is suitable for identifying perceptions and scenarios that the literature suggests to obtain key themes. An ii inductive method was used to derive the core thematic codes. This thesis has developed a conceptual model from the literature, based on codes and themes derived from the literature and thematic analysis. This process is at the core of this thesis’ unique contribution to knowledge.

Results: The findings revealed eight codes and eleven themes. Codes are (A) failure of the system; (B) social and cultural barriers; (C) community as restorative; (D) reoffending youths; (E) therapeutic jurisprudence is earning recognition in its own right; (F) offender wellbeing; (G) amalgamation of justice systems; and (H) victim participation and offender autonomy. The eleven themes are (1) Retribution underpins traditional justice, causing harm to offenders; (2) Victim protection and involvement are compromised; (3) Recidivism is a core concern; (4) Rates of recidivism increases for certain demographics; (5) Offenders can repair the harm done while being supported; (6) Offering conference over court is beneficial and prevents reoffending; (7) Traditional and therapeutic systems cannot be judged together using normal standards of measurement; (8) Therapeutic jurisprudence is an effective way to reduce recidivism rates; (9) Court law integration with therapeutic jurisprudence is beneficial; (10) Therapeutic jurisprudence can be used as a framework for restorative justice; and (11) Incorporating both therapeutic and restorative methods ensures victim autonomy and offender participation. Two core findings were that traditional justice is failing and that therapeutic jurisprudence is well-placed to take its place. This led to a new model being derived.

Conclusion: The overall value of therapeutic jurisprudence, and to a lesser degree, restorative justice, leads to greater wellbeing, higher rehabilitation, and lower recidivism than traditional justice does. The new proposed model is a unique contribution to the legal field.