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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
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
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.
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).


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