Multiple states have enacted statutes to govern procedures when a state seeks to execute a person who may be incompetent to understand why s/he is being so punished, an area of the law that has always been riddled with confusion. The Supreme Court, in Panetti v. Quarterman, sought to clarify matters, ruling that a mentally ill defendant had a constitutional right to make a showing that his mental illness “obstruct[ed] a rational understanding of the State’s reason for his execution.”

However, the first empirical studies of how Panetti has been interpreted in federal courts painted a dismal picture. Only a handful of defendants have ever been successful in federal courts in seeking to enforce the Panetti ruling, and the authors of this abstract have characterized the relief ostensibly offered by that case as nothing more than an “illusion” or a “mirage” in a federal context. The issues of believability of experts, allegations of malingering, and “synthetic competency” dominate these decisions.

In this paper, we seek to expand this inquiry to determine (1) how defendants in state courts seeking to assert Panetti claims have fared, and (2) the extent to which state statutes have made any meaningful difference in the way such cases have been decided. We also investigate the significance of the fact that the caselaw in this area has totally ignored the teachings of the school of legal thought known as therapeutic jurisprudence and offer some conclusions and recommendations (based on therapeutic jurisprudence principles) that, if implemented, can (at least partially) ameliorate this situation.

This article examines how a therapeutic perspective on victim participation has been conceptualized and implemented in criminal trials in Japan after procedural reforms in 2000 and 2008. Findings are discussed with reference to therapeutic jurisprudence studies on victim participation and relevant literature on Japanese criminal justice. Analysis of policy documents, survey data, interviews, and minutes of Ministry of Justice “expert meetings” reveals how the therapeutic needs of victims and the therapeutic effects of victim participation in court proceedings have been understood and conceptualized based on generalized common-sense assumptions of legal practitioners. In court, participants’ reference to victims’ wellbeing and recovery puts pressure on judges to impose harsher punishment than usual, while reinforcing the position of prosecutors. The adopted therapeutic perspective, combined with traditionally expected displays of remorse, furthermore has the effect of limiting the defence’s ability to argue facts and circumstances favourable to the defendant.