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18 eLaw J. 1 (2011)

handle is hein.journals/elajrnl18 and id is 1 raw text is: A-C Larsen and P Milnes

A Cautionary Note on Therapeutic Jurisprudence for Aboriginal Offenders
Ann-Claire Larsen and Peter Milnes*
Therapeutic jurisprudence (TJ) is a recent legal practice reform, requiring judges and
lawyers to attend to offenders' wellbeing. Despite being lauded as the 'most prolific
vector' of the Comprehensive Law Movement, TJ has also been condemned as
ineffectual, even dangerous. In this paper we review TJ in three sections: the problems
TJ seeks to address, how TJ is applied and its requirements, and the new problems TJ
produces. This paper exposes tensions between established legal principles and efficacy
or recidivism concerns that drive the TJ agenda. It concludes that a judiciary that
concerns itself with offenders' social and psychological problems may undermine
established legal principles.
1       Introduction
Therapeutic jurisprudence (TJ) is a new legal reform requiring judicial officers and
lawyers to promote offenders' 'wellbeing'' to improve their rehabilitative prospects.
Proponents of TJ promise that these reforms will relieve the 'prison crush' in
Australia's overcrowded prisons and address over-representation of Indigenous
people in the criminal justice system. TJ has raised theoretical questions again about
the appropriateness of rehabilitation projects2 involving treatment, the 'one size fits
all'3 approach to offenders and mandatory sentencing. In the scramble to address
recidivism, further questions must be asked about what is lost and gained in applying
TJ reforms: are they informed by research-based evidence including local socio-
cultural considerations, how are individual offenders assessed, are judges and
* Ann-Claire Larsen, BA, LLB, LLM, PhD. Senior Lecturer, School of Law & Justice, Centre for
Innovative Practice, Edith Cowan University, 127 Joondalup Drive, Joondalup, Western Australia
6027. Email: a.1arsen(aecu.edu.au. Ann-Claire Larsen teaches international human rights and
professional ethics for the School of Law & Justice at Edith Cowan University.
Peter Milnes PhD; M.Ed.Admin; B.Ed.; B.Div.; Grad.Cert.Intercultural Studies. Adjunct Associate
Professor, School of Law & Justice, Edith Cowan University, 127 Joondalup Drive, Joonalup, Western
Australia 6027. Email: peter atbelco.com.au.
Please direct all correspondence relating to this article to Ann-Claire Larsen.
1 Michael King, 'Applying Therapeutic Jurisprudence in Regional Areas - The Western Australian
Experience' (2003) 10(2) June eLaw: Murdoch University Electronic Journal ofLaw para. 1.
2 Samantha Jeffries, 'How Justice Gets Done: Politics, Managerialism, Consumerism, and
Therapeutic Jurisprudence' (2005) 17 Current Issues in Criminal Justice, 258.
3 See Natasha Bakht, 'Problem Solving Courts as Agents of Change' (2004) 4 February.
<htto)://ww.iadtc.1aw, .ecu.edu.au/adfs/Problem%/2OSolvin2 %2OCourts%2OPaper%20final%/20ipr.pdf

eLaw Journal: Murdoch University Electronic Journal of Law (2011) 18(1) 1

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