Therapeutic Jurisprudence and Restorative Justice in the United States: The Process of Institutionalization and the Roles of Judges

Abstract

The legal systems and the judiciary in many countries have been changed and reformed, with the aim of dispensing justice quicker and more effectively. Some reforms have tried a less adversarial approach to resolving legal disputes, for example, Therapeutic Jurisprudence (TJ) and Restorative Justice (RJ). The objective of this article is to describe how institutionalized these movements are in the United States and the roles played by judges in this process. The data collection involved document analysis, observation of court-hearings, and interviews with 13 judges from several judicial areas involved in TJ and/or RJ judicial proceedings in the United States. Data analysis was undertaken using content analysis and the software NVivo. The results provide evidence that (a) these movements are in a process of divergent change implementation; (b) judges who engage with these approaches act as institutional entrepreneurs; and (c) the judges interviewed can be classified into four roles that are complementary in the promotion of TJ/RJ: promoter, author, convener, and maintainer.

Therapeutic Jurisprudence and Restorative Justice in Brazil

“…Werner and Cornelissen (2014) provide an analysis of institutional change at the micro level. Using their classification of frame shifting and frame blending, Traguetto and Guimaraes (2019) suggest that the American context of Therapeutic Jurisprudence and Restorative Justice fits with “radical” frame shifting, because these new ways of dispensing justice has spread to the United States, including the functioning of problem-solving courts in virtually every American state. In the Brazilian context, this research shows that TJ and RJ fit with “radical” frame blending, as shown in Figure 1.…”

“…These processes need to be applied in specific contexts and in the most responsible way possible. Any method in the social science has critical points, such as the possible involvement of judges with offenders, which can reopen paths to possible unconscious bias in processing and case results (Traguetto & Guimaraes, 2019). For this reason, understanding the role of judges in the analysis of this institutional change is of paramount importance and the present study contributes to this end.…”

“…The present study suggests that the inspiration for the launch of the "Therapeutic Justice Program" came from the American Drug Courts experience. The American judges who engage with TJ and/or RJ were considered to be institutional entrepreneurs, and they seek to spread their idea around the world (Traguetto & Guimaraes, 2019).…”

Institutionalizing Restorative Justice in New Zealand's Criminal Justice System: Gains, Losses and Challenges for the Future

“…This is exemplified in one study conducted in the United States, in which the authors conclude that therapeutic and restorative justice initiatives adopted in select courts have not reached full institutionalization. Because sedimentation means that variability of practice and implementation decrease as structures are normalized, Traguetto & Guimaraes (2019) argue that therapeutic and restorative justice efforts are not yet fully institutionalized because "there are still several nomenclatures and different practices," even though they have been endorsed by several judges in key decision-making positions (p. 1984).…”