Therapeutic Jurisprudence Approach Research Articles

“Be All That You Can Be”: The Role of Identity, Pro‐Social Labeling, and Narratives in Veterans Treatment Courts*

Veterans Treatment Courts (VTCs) are one of the ever‐developing brands of specialty or problem‐solving courts that have emerged in recent decades. These courts recognize that the criminal behavior stems from a variety of issues, and that punishment should represent a therapeutic jurisprudential approach in its strategies. As such, VTCs treat substance abuse and mental health issues and address criminality in a manner that recognizes a need for individualized treatment and accountability in structure. This research provides an in‐depth institutional ethnography of one Southern California VTC (SC VTC). To understand the powerful transformative tools of identity and narrative, this research utilized over 3 years of non‐participant observation at 117 court sessions in the SC VTC, and 23 in‐depth interviews with both current court participants and graduates and a judge, exploring participants' experiences with and perceptions of the SC VTC. This study demonstrates the utility of identity‐based narratives to navigate legal systems and potentially desist from crime. These mechanisms of narrative and identity provide a powerful illumination of these courts that have ramifications for successful reintegration into society post‐criminal justice interaction.

Disclosure to unknowing victims in criminal justice investigations: Questions of vulnerability, ethics and practice

This article explores the situation in which a victim who has been identified during a criminal justice investigation is unaware of the crime committed against them. We argue that unknowing victims possess a unique vulnerability because discovering their victim status is highly likely to have harmful effects. Where law enforcement officers (LEOs) remain unaware of the victim's knowledge of the crime, this should be perceived as a clue to potential vulnerability. Any subsequent disclosure of the crime to an unknowing victim is an external intervention that exposes them to the risk of harm, thereby raising significant ethical questions. Yet the ethical ramifications of disclosure are not considered in the policing literature and there is no specific professional guidance in England and Wales (and beyond) on this situation. Focusing on two of the primary crime contexts in which a victim can be unknowing (sexual offences and fraud), we scrutinise the ethical issues surrounding LEOs disclosing to an unknowing victim, aligning our analysis with the College of Policing's Code of Ethics and vulnerability-related risks guidelines, and a therapeutic jurisprudence approach to policing.

Achieving quality outcomes in community titles disputes: A therapeutic jurisprudence approach

Queensland has had over 38 000 community titles schemes established under the Body Corporate and Community Management Act 1997 (Qld) ('the Act'). The Office of the Commissioner for Body Corporate and Community Management ('OCBCCM') is responsible for providing an education, information and dispute resolution service for owners of lots within these community titles schemes.

Regulating Road Traffic Violation by Youth in India: A Therapeutic Jurisprudential Approach

Traffic Violations (except grave offences like hit-and–run cases) are considered as petty violations of laws in Indian context. The punishments prescribed for traffic rule violations stem out majorly from Motor Vehicles Act,1988 (amended in 1994) and partly from the provisions of Indian Penal Code. But such sentences may remain limited to pecuniary fines or jail terms for a minimum period. In most cases, the offender may not have to undergo the later especially when the provision provides option between pecuniary fines and jail term by including “or” in the penal portion. This article claims that such nature of punishment may not serve actual purpose of traffic violation penology because the offender may get away only with pecuniary fines and may repeat the offence since he/she may know that he/she may always get away with ‘just fines’. This article offers solution for this from Therapeutic Jurisprudential perspectives using the Safe driving center model proposed by Winnick & Perez(2009).

A Comparison of Defendants with Mental Illness Represented by Public Defenders and Private Attorneys: an Analysis of Court-Ordered Pretrial Psychiatric Evaluations

This study compared the characteristics and court-ordered evaluation questions and responses among 4,430 defendants to determine if differences existed between those represented by public defenders and private attorneys when receiving trial competency or responsibility psychiatric evaluations from a state department of mental health. Defendants represented by public defenders were more likely to be younger, to have less education, to have psychotic disorders, to have a history of inpatient psychiatric treatment, to live in urban or rural counties, and to be jailed at the time of the evaluation. In addition, defendants represented by public defenders were less likely to have a request for a criminal responsibility evaluation and more likely to be evaluated as having a mental illness, to be incompetent to stand trial, and to need hospitalization pending trial. Consideration of whether defendants with public defenders receiving less requests for responsibility evaluations was indicative of a therapeutic jurisprudence approach is discussed. Implications for research on types of legal representation of defendants with mental illness are discussed.

The Use of a Therapeutic Jurisprudence Approach to the Teaching and Learning of Law to a New Generation of Law Students in South Africa

In rapidly changing social, economic and intellectual environments it is imperative that teaching and learning should be transformed from being primarily concerned with the transmission of knowledge (learning about) to being primarily concerned with the practices of a knowledge domain (learning to be). Law lecturers are faced with a new generation of law students, many of whom may be the first in their families to enter university, and one of the important challenges that we face, when educating law students, is how to enable these students to take their place in a very important profession. To meet this challenge it is necessary to instill skills that will be beneficial to the profession, future clients and the community as a whole. We at the University of Johannesburg are endeavouring to do so through embracing a therapeutic jurisprudence approach that focuses on the well-being of the student, the client and the community.
 
 The integration of therapeutic jurisprudence throughout the law student's studies, starting with orientation and continuing through to the final-year clinical experience, will enhance the therapeutic outcomes for all of the parties involved. A therapeutic jurisprudence approach, combined with appropriate teaching and learning methods, will enhance the student's interpersonal skills and writing and reading skills.
 
 The teaching methods invoked include role-play to transform formal knowledge into living knowledge, thereby stimulating students' natural practical curiosity and creating a learning environment that supports collaboration and encourages students to act purposefully in such an environment.
 
 This article discusses the teaching of first-generation students and how to overcome the existing social, cultural, economic and linguistic barriers by using a therapeutic jurisprudence approach, while upholding the values that should guide legal practice, such as integrity and respect for diversity and human dignity. The constitutional imperative of access to justice for all underlines the importance for law teachers of incorporating therapeutic jurisprudence in their teaching methods.
 
 In South Africa, law lecturers face many challenges in teaching law students and first-generation students. Passionate teachers will produce passionate students and realise that they have the power to transform thoughts, policies and lives. Students should be reminded that law is not just about financial rewards, but the ultimate reward of contributing to the betterment of society.
 
 The legal profession expects us to produce a well-rounded graduate for entry into the profession. This necessitates that our teaching methods be appropriate to prepare the student for an entry level of competence for the legal profession. Therapeutic jurisprudence creates the opportunity for the lecturer not only to equip the student with the skills required by the profession but to implement teaching methods that will prove to be beneficial for all of the role-players involved. The honing of skills such as legal writing and oral advocacy from the first year of study creates the opportunity for the students to develop to their full potential. In order to support a meaningful, integrated teaching approach, the development of skills is expanded on during each year of study and can prove beneficial to all role-players during clinical education, where the student has the opportunity to apply the acquired skills in real-life situations. The impact of a therapeutic jurisprudence on the development of legal skills can now be measured through the student's ability to focus on the well-being of the client and the community.

Therapeutic Jurisprudence as a Needed Framework for a Behavioral Health Integrated Criminal Justice System

Increasingly, psychologists and other mental health professionals are working with the court order and offender populations in the human service and the criminal justice systems as a result of the deinstitutionalization of the mentally ill. A therapeutic jurisprudence (TJ) framework is offered as and integrative paradigm, which aims to serve the best interests of the community, while nevertheless limiting the overly punitive and unmerited aspects of offender treatment. A therapeutic jurisprudence framework requires a legal system informed by the research of psychology and integration of the mental health practice system with the criminal justice system. This paper calls for a broader adoption of the TJ approach across the criminal justice systems.

Personality Affects Memory Performance and Psychological Well-Being in Investigative Interviews: A Therapeutic Jurisprudential Approach

Therapeutic jurisprudence (TJ) aims to execute legal procedures in ways that promote the psychological well-being (PWB) of the individuals involved. This experimental study investigates the impact of personality on interviewees' memory performance and PWB from a TJ perspective. PWB was defined by state anxiety (STAI-S) and sense of coherence (SOC). Interviewees' personalities were assessed using the 10-item short version of the Big Five Inventory (Rammstedt, B., & John, O. P. (2007). Measuring personality in one minute or less: a 10-item short version of the Big Five Inventory in English and German. Journal of Research in Personality, 41, 203–212) and State–Trait Anxiety Inventory (STAI-T; Spielberger, C. D., Gorsuch, R., Lushene, P. R. Vagg, P. R., & Jacobs, G. A. (1983). State–Trait Anxiety Inventory for Adults. Palo Alto, CA: Consulting Psychologists Press]. Participants (N = 146) were assigned to undergo either humanitarian rapport interviews or non-rapport interviews. Each group underwent one exposure (computer simulation) and two interviews separated by a 6-month interval. Regression analysis showed that neuroticism (N), openness to experience (O) and extraversion (E) predicted interviewees' memory performance; N and O were moderated by interview style. Moreover, E and agreeableness (A) predicted higher SOC and lower STAI-S, that is, increased PWB, whereas N predicted lower SOC and elevated levels of STAI-S, that is, lower PWB. In Interviews I and II, STAI-T and a non-rapport approach were a stronger predictor of lower SOC. The results are discussed from a TJ perspective.

Interviewees’ Psychological Well-being in Investigative Interviews: a Therapeutic Jurisprudential Approach

Therapeutic jurisprudence sees the law as a social force; its underlying idea is that legal procedures should promote the psychological well-being (PWB) of individuals involved in juridical actions. In this experimental study, 146 subjects were assigned to one of two groups: one undergoing humanitarian rapport interviews, the other undergoing non-rapport interviews. Each group underwent two interviews separated by a six-month interval. The causal effects of interview style on interviewees’ PWB were measured using sense of coherence and State–Trait Anxiety inventories, both pre and post interview at Interviews I and II. Analysis of covariance of scores from both interviews showed interaction effects between interview style and interviewees’ anxiety and sense of coherence, respectively. At Interview I, a non-rapport approach was related to increased anxiety, that is, decreased PWB when comparing pre- and post-interview testing. At Interview II, a humanitarian rapport approach promoted improved sense of coherence, thus, increased PWB. More empirical research on PWB in relation to therapeutic jurisprudence is needed. The discussion focuses on how PWB should be measured in a therapeutic jurisprudential context of investigative interviews.

Revenge Porn by Teens in the United States and India: A Socio-Legal Analysis

SummarySexting among teens has become a huge problem in the US as well as in India. This has given birth to numerous issues including issues related to child pornography, exploitation of images by perpetrators and revenge porn. While in the US laws are being created and tested for regulating sexting in relation to revenge porn, the situation is quite different in India. This paper emphasises that there is a lacuna in dealing with adolescent sexual behaviour including revenge taking attitude with the help of sexted images. This paper argues that instead of dealing the issue of revenge porn by teens in the traditional procedural ways as has been laid down in the legal provisions or by way of rusticating the children (including the perpetrators and the victim) from the school as has happened in India in several occasions, Therapeutic Jurisprudence approach should be taken up.

The Use of a Therapeutic Jurisprudence Approach to the Teaching and Learning of Law to a New Generation of Law Students in South Africa

In rapidly changing social, economic and intellectual environments it is imperative that teaching and learning should be transformed from being primarily concerned with the transmission of knowledge (learning about) to being primarily concerned with the practices of a knowledge domain (learning to be). Law lecturers are faced with a new generation of law students, many of whom may be the first in their families to enter university, and one of the important challenges that we face, when educating law students, is how to enable these students to take their place in a very important profession. To meet this challenge it is necessary to instill skills that will be beneficial to the profession, future clients and the community as a whole. We at the University of Johannesburg are endeavouring to do so through embracing a therapeutic jurisprudence approach that focuses on the well-being of the student, the client and the community. The integration of therapeutic jurisprudence throughout the law student's studies, starting with orientation and continuing through to the final-year clinical experience, will enhance the therapeutic outcomes for all of the parties involved. A therapeutic jurisprudence approach, combined with appropriate teaching and learning methods, will enhance the student's interpersonal skills and writing and reading skills. The teaching methods invoked include role-play to transform formal knowledge into living knowledge, thereby stimulating students' natural practical curiosity and creating a learning environment that supports collaboration and encourages students to act purposefully in such an environment. This article discusses the teaching of first-generation students and how to overcome the existing social, cultural, economic and linguistic barriers by using a therapeutic jurisprudence approach, while upholding the values that should guide legal practice, such as integrity and respect for diversity and human dignity. The constitutional imperative of access to justice for all underlines the importance for law teachers of incorporating therapeutic jurisprudence in their teaching methods. In South Africa, law lecturers face many challenges in teaching law students and first-generation students. Passionate teachers will produce passionate students and realize that they have the power to transform thoughts, policies and lives. Students should be reminded that law is not just about financial rewards, but the ultimate reward of contributing to the betterment of society. The legal profession expects us to produce a well-rounded graduate for entry into the profession. This necessitates that our teaching methods be appropriate to prepare the student for an entry level of competence for the legal profession. Therapeutic jurisprudence creates the opportunity for the lecturer not only to equip the student with the skills required by the profession but to implement teaching methods that will prove to be beneficial for all of the role-players involved. The honing of skills such as legal writing and oral advocacy from the first year of study creates the opportunity for the students to develop to their full potential. In order to support a meaningful, integrated teaching approach, the development of skills is expanded on during each year of study and can prove beneficial to all role-players during clinical education, where the student has the opportunity to apply the acquired skills in real-life situations. The impact of a therapeutic jurisprudence on the development of legal skills can now be measured through the student's ability to focus on the well-being of the client and the community.

Reversing the historical tide of iatrogenic harm: A therapeutic jurisprudence analysis of increases in arrests of domestic batterers and rapists

Therapeutic jurisprudence (TJ) proposes that the law is a social force that can heal or cause harm to parties in a legal action. Historically, women victims of intimate partner rape and domestic violence could not seek justice in the legal system because police, like other actors in the justice system, treated these offenses as private matters or fabrications. In domestic violence and intimate rape cases, TJ is concerned with the needs of the victims, and how the law and police play a role in increasing their well-being. In this article, we use a TJ approach to the study of police responsiveness to victims of these offenses by investigating arrests of the offenders pursuant to law reforms that encourage or mandate arrest. Given that in these offenses, victims have the lowest reporting rates of any violent crime, the victim decision to call the police represents an expectation that the mere physical presence of a police officer may redefine the nature of the violence from a private conflict to a societal wrong that will not be tolerated. Police partnership with and treatment of the victim with respect and dignity can change the dynamics of the violence, terminate the violence, and set the criminal justice process in motion by arresting the offender in most cases. Police arrest, and subsequent prosecution and conviction, sends a message to offenders that society does not tolerate their violence, and allows the victim to begin to heal. Yet, past research indicates that police are less likely to arrest intimates than acquaintances and strangers in misdemeanor and aggravated assault, rape, and sexual assault cases. Using the National Incidence Reporting System (NIBRS) for the year 2000, we examine police arrests of intimate partner rape and domestic violence in jurisdictions with mandatory and presumptive arrest policies compared to police arrests in full discretion jurisdictions. We also ascertain whether arrest rates are higher for strangers and acquaintances than for intimates in misdemeanor and aggravated assault, kidnapping, and rape and sexual assault. Third, we determine whether police arrests of intimate partner rape is more likely if there is evidence of violence, injury to the victim, and use of a weapon. Our multivariate findings suggest that both the rape and the domestic violence reform movements have reversed the tide of historical negative treatment of female victims of these offenses. Logistic regression analysis indicates that police agencies in mandatory and preferred arrest jurisdictions increase the odds of arrest for domestic violence incidents and violations of orders of protection, compared to police agencies in jurisdictions with permissive/discretionary arrest policies. In addition, intimate violence increases the odds of arrest by 98%; forcible rape accompanied by simple assault or kidnapping increases the odds of arrest by 467 and 222%, respectively whereas forcible fondling accompanied by simple assault increases the odds of arrest by 293%. We discuss the implications of our findings for future law reform as well as TJ.

Establishing a compulsory drug treatment prison: Therapeutic policy, principles, and practices in addressing offender rights and rehabilitation

A Compulsory Drug Treatment Correctional Center (CDTCC) was established in Australia in 2006 for repeat drug-related male offenders. Compulsory treatment law is inconsistent with a therapeutic jurisprudence approach. Despite the compulsory law, a normative offender rehabilitation framework has been established based on offender moral rights. Within moral rights, the offender rehabilitation framework addresses the core values of freedom (supporting autonomous decision-making) and well-being (supporting support physical, social, and psychological needs). Moral rights are underpinned by a theory or principle which, in this instance, is a humane approach to offender rehabilitation. While a law that permits offenders to choose drug treatment and rehabilitation is preferable, the article discusses the establishment of a prison based on therapeutic policy, principles, and practices that respond to participants as both rights-violators and rights-holders. The opportunity for accelerated community access and a therapeutic alliance with staff has resulted in offenders actively seeking to be ordered into compulsory drug treatment and rehabilitation.

Achieving Quality Outcomes in Community Titles Disputes: A Therapeutic Jurisprudence Approach

Community title schemes are an increasingly popular form of housing in Queensland and throughout Australia in general. Community title housing (typically apartment buildings and townhouses) involve medium to high-density living, which in turn tend to produce a higher incidence of neighbourhood disputes than lower density living options. However, a second reason for the prevalence of the disputes is the varied nature of interests in a community title scheme. Within the single scheme, there may be owner occupiers (either residential or commercial or both), tenants (again, residential, commercial or both), members of the body corporate committee, and property managers. Each of these types of stakeholders has different interests and perceptions of how a scheme ought to operate, with the potential for serious disputes to result.Recognising the potentially harmful effects of community title disputes and the need for accessible dispute resolution options, the Office of the Commissioner for Body Corporate and Community Management (OBCCM) was established to provide specialist dispute resolution procedures. The OBCCM offers conciliation and adjudication, with avenues of appeal available to the newly-established Queensland Civil and Administrative Tribunal. The OBCCM’s self-identified objective in relation to this service is to offer “a quality dispute resolution service which is timely and responsive.” In practice, the dispute resolution services are a hybrid of inquisitorial and adversarial approaches, focussing on the legal aspects of the dispute. This paper combines academic and practitioner perspectives to explore the possibility of a therapeutic approach to body corporate and community title disputes. The paper firstly provides an overview of the dispute resolution context of community title disputes and the role of the OBCCM. It then considers the effect of current OBCCM practices on participant wellbeing, and questions whether the introduction of a therapeutic approach might not only improve outcomes in discrete cases, but in fact have the potential to enhance or restore community living within troubled schemes. Finally, the paper comments on the type of legal and dispute system changes that might be required to facilitate such an approach.

Therapeutic Jurisprudence, Criminal Law Practice, and Relationship-Centered Lawyering

This brief essay, prepared for a Chapman law school conference on therapeutic juriprudence and problem-solving courts, suggests that a therapeutic jurisprudence approach to criminal lawyering is consistent with notions of zealous advocacy, and that such an approach to criminal lawyering also fits nicely within an emerging framework of 'relationship-centered' lawyering. Relationship-centered lawyering is consistent with client-centered lawyering in exactly the same way that therapeutic jurisprudence lawyering is consistent with zealous advocacy: both approaches add a rich, interdisciplinary, and holistic ingredient to the traditional approach. Moreover, in the criminal law context, a relationship-centered approach will encourage therapeutic jurisrudence thinking to examine the role of the prosecutor, an area that has thus far not attracted sufficient academic attention. The present essay provides some examples from the prosecutorial arena and urges further development of therapeutic jurisprudence studies along those lines.

A Therapeutic Jurisprudence Approach to Dealing with Coercion in the Mental Health System

This article describes the approach of therapeutic jurisprudence, an interdisciplinary form of legal scholarship that has a law reform agenda. It then illustrates the approach by applying it to the question of when coercion might be appropriate in the area of involuntary psychiatric hospitalization and treatment and, when appropriate, how clinicians, judges, and lawyers should act so as to minimize coercion's potentially anti-therapeutic effects and maximize the therapeutic potential of law in this area. The article considers areas of psychological research involving the relative effectiveness of coercion and voluntary choice in the area of hospitalization and treatment, and on what makes patients feel coerced in these contexts. The article seeks to reshape legal rules and legal and clinical practices relating to involuntary hospitalization and treatment to reflect a therapeutic jurisprudence orientation.

The Development and Introduction of an In-Patient Student Law Services for Persons with Serious Mental Illness: A Case Study

There is a need to provide legal assistance to persons who suffer with serious mental illness for legal problems over and above problems associated with mental illness. This paper describes a single-case study of the development and introduction of a pilot of a hospital-based, legal service, in partnership with The University of Western Ontario Faculty of Law. The data sources included direct observation and documentation. Law students provide legal services reflecting the application of a therapeutic jurisprudence approach. Interprofessional education and training occurs with law, medical, nursing and other students, and professionals on the principles and scholarship of therapeutic jurisprudence, mental illness and legal rights. A programmatic organizational template, the program logic model, was used to conceptualize the activities, and process, short-term, long-term and ultimate objectives, and indicators. The four core activities were: (1) patient access point to law students; (2) supervision of law students at the London Health Sciences Centre; (3) intake and access to other services, and (4) teaching and additional training of law and other students, physicians and other health caregivers. The development, issues and challenges of the introduction of an in-patient student law service is described.

Sex Offender Reentry Courts

Recently enacted legal strategies to protect society from dangerous sex offenders generally use two very different approaches: Long-term incapacitation or outright release. The first strategy relies on harsh criminal sentences or indeterminate sexual predator commitment laws. The second relies primarily on registration and notification laws. Both strategies rely on prediction models of dangerousness. Authorities determine at a single moment the likelihood that an offender will sexually "recidivate" and then choose the appropriate type of control for an extended period. This paper reviews the problems of predicting sexual recidivism in the context of both strategies. It then proposes special sex offender reentry courts to manage the risk that sexual offenders will reoffend. Risk management allows decision makers to adjust calculations of individual risk on an ongoing basis in light of new information and to adjust the level of control. Drawing on Therapeutic Jurisprudence-a belief that legal rules, procedures, and legal roles can have positive or negative psychological impact on participants in the legal system-these courts can impose, and then adjust control over sex ofenders in the community. In a sex offender reentry court, the judge is a member of an interdisciplinary team that uses a community containment approach; the offender, as a condition for release, enters into a behavioral contract to engage in treatment and submit to periodic polygraph testing. This therapeutic jurisprudence approach creates incentives for offenders to change their behavior and attitudes, thereby reducing their recidivism risk and earning more freedom. It can also monitor compliance and manage risk more effectively.

A Therapeutic Jurisprudence Approach to the Trial Process in Domestic Violence Felony Trials

This article presents a therapeutic jurisprudence approach to the prosecution of domestic violence–related felony trials. After demonstrating how the current trial process has antitherapeutic effects on victims, the article sets forth a series of recommendations for prosecutors in using a client-centered model during the trial process. These recommendations include the following: anticipating defenses in domestic violence cases, having positive pre-trial interactions with victims to empower them through the process, using pretrial motions to limit negative victim character evidence and introduce evidence about the defendant’s prior abuse, and the importance of allowing victims to contextualize the violence in their testimony during trial.

Mental Health and Law: Research, Policy and Services

Mental Health and Law: Research, Policy and Services