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40 Am. Crim. L. Rev. 1567 (2003)
A Neo-Retributionist Concurs with Professor Nolan

handle is hein.journals/amcrimlr40 and id is 1577 raw text is: A NEO-RETRIBUTIONIST CONCURS WITH PROFESSOR NOLAN Judge Morris B. Hoffman* I loved Professor Nolan's paper, and notjust because he and I are among the few people to suggest that the emperor of therapeutic jurisprudence has no clothes.' What I loved about it is that it focuses on the deepest darkest secret of the movement's philosophical failure. He writes: Therapeutic jurisprudence scholars assume, without explanation, that therapeu- tic outcomes in the law are necessarily a desired good.2 Bingo. That is the very heart of the therapeutic jurisprudence fallacy. It assumes the law's function is to make people better. And it assumes that making people better has become the raison d'8tre not just of the law, but of the whole of government.3 Before plumbing these philosophical depths, let's first consider some news from the frontlines. I am happy to report that the Denver Drug Court, which was the second therapeutic drug court in the land, is now the first therapeutic drug court to have been disbanded. We discontinued it effective January 1, 2003. What went wrong in Denver is what I fear is going wrong in therapeutic courts across the country. Massive net widening, coupled with dismal recidivism results, meant that our drug court was sending more drug defendants to prison than we ever did before drug court, by a factor of almost two.4 So much for saving a bundle of money on prison costs. We also suffered all the other daunting institutional problems Professor Nolan discusses in his paper: the conspiracy of silence by the defense bar; the unholy and dangerous alliance between the therapeutic priesthood and the judicial priesthood; and the embarrassing torturing of the language. Ah, the newspeak of therapeutic courts! Defendants are clients; punishment is treat- * District Judge, Second Judicial District (Denver), State of Colorado. The views expressed here are of course my own, and do not necessarily reflect the views of the District Court for the Second Judicial District or any of my colleagues on that Court. This essay is based on, and in fact consists almost entirely of, remarks given at a conference on community courts at Columbia Law School on April 4, 2003. 1. See generally JAMES L. NOLAN, JR., REINVENTING JUSTICE: THE AMERICAN DRUG COURT MOVEMENT (Paul J. DiMaggio et al. eds., 2001); Morris B. Hoffman, Therapeutic Jurisprudence, Neo-Rehabilitationism and Judicial Collectivism: The Least Dangerous Branch Becomes Most Dangerous, 29 FORDHAM URE. L.J. 2063 (2002). 2. James L. Nolan Jr., Redefining Criminal Courts: Problem-Solving and the Meaning of Justice, 41 AM. CRIM. L. REV. 1541, 1551 (2003). 3. Professor Nolan makes this broader point in his wonderful book, THE THERAPEUTIC STATE: JUSTIFYING GOVERNMENT AT CENTURY'S END (1998). It is a must read for anyone interested in these issues. 4. Morris B. Hoffman, The Drug Court Scandal, 78 N.C. L. REV. 1438, 1510-12 (2000). 1567

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