Benjamin Levin (Washington University in St. Louis – School of Law) has posted Therapeutic Justice and the Problem of Penal Welfare (Virginia Law Review (forthcoming 2026)) on SSRN. Her eis the abstract:
For decades, scholars and activists have decried the punitive turn in U.S. criminal policy and the rise of mass incarceration. Unsurprisingly, then, much ink has been spilled exploring alternative frameworks for responding to risk creation and interpersonal harm. And, many commentators have embraced proposals that would repurpose existing criminal legal institutions—replacing a punitive orientation with one grounded in rehabilitation or restorative justice. In this Essay, I turn a critical eye on the project of reimagining criminal courts as therapeutic institutions. Drawing from the literature on penal welfare, I argue that these well-intentioned proposals risk reinforcing a troubling feature of post-Great Society U.S. political economy: viewing the criminal system as a primary site of governance and the right place to solve social problems. Instead, I argue that a turn to therapeutic justice should invite a turn away from criminal legal institutions and a shift to alternate frameworks for redressing harm and managing risk.