Forming the International Society for Therapeutic Jurisprudence!

The International Society for Therapeutic Jurisprudence (TJ Society) is a new, non-profit, learned association established to advance therapeutic jurisprudence (TJ), a school of legal philosophy and practice that examines the therapeutic and anti-therapeutic properties of laws and public policies, legal and dispute resolution systems, and legal institutions. 

TJ values psychologically healthy outcomes in legal disputes and transactions, without claiming exclusivity in terms of policy objectives.

The TJ Society shall advance these overall purposes by:

  • supporting legal and interdisciplinary scholarship; 
  • identifying and promoting best professional and judicial practices; 
  • sponsoring conferences, workshops, and seminars; 
  • and hosting and participating in print, electronic, social media platforms.

The TJ Society will be a membership organization, with annual dues set at an affordable, accessible level.

Work so far…

As of mid-June 2017, the founding trustees of the TJ Society are engaged in the following activities:

  • Planning for a panel discussion to launch and discuss the TJ Society, to be held at the July 2017 Congress on Law and Mental Health in Prague, Czech Republic;
  • Finalizing articles of incorporation and initial by-laws;
  • Creating a global advisory council of law faculty, attorneys, judges, and scholars and practitioners from complementary fields, a group that we anticipate will grow significantly over time;
  • Expanding the TJ Society Board of Trustees, especially with an eye toward more diverse geographic representation and subject-matter expertise;
  • Developing a website for the TJ Society;
  • Consolidating, where applicable and desired, existing TJ activities under the TJ Society rubric.

During this summer, we are building the basic infrastructure of the organization. However, the following months and years will engage a lot more people and involve a lot more activities. The latter include, but are hardly limited to: 

  • Inviting members of the TJ Society to form and join affinity groups based on shared subject-matter interests and geographic proximities;
  • Building our social media and web presence to offer a virtual home for members of the TJ Society and its friends; and,
  • Developing the TJ Society to support and co-sponsor TJ-related events and activities around the world.

The creation of a membership organization devoted to TJ has been a topic of discussion for several years and became more focused at a 2016 TJ workshop held at Suffolk University Law School in Boston. From there, a small group of devoted TJ adherents began establishing the groundwork for this fledgling TJ Society.

These origins also reflect, for now only, the North American concentration of founding trustees. By the end of the summer, through additions to the board of trustees and the creation of the global advisory council, the leadership profile of the TJ Society will be much more reflective of the diversity of the TJ world community.

 We hope to build an organization that is “flat” in nature, with a board of trustees committed to the spirit and practice of servant leadership and the fostering of a TJ community that is grounded in participation, exchange, and mutual learning. 

The TJ Society should not be an end in itself, but rather a conduit and steward for supporting and expanding the reach and influence of TJ, while offering a friendly and engaging “home base” for those who identify with it.

 Stay tuned for more including how to join!!

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6 therapeutic jurisprudence practices for judges and courts…

In this blog we draw on an article by Paula O’Byrne where she explores some key TJ practices that can be used to improve the effectiveness of criminal courts… 

  1. Legal actors should be aware they function as a therapeutic agent and apply an ethic of care. Judges should interact with offenders and conduct court proceedings in a manner that maximises therapeutic outcomes. Judges and lawyers should encourage and motivate offenders to confront their problems, engage with them in developing solutions, treat them with dignity and respect, and give them a ‘voice’ in proceedings. Interpersonal skills that engender trust and respect – such as active listening, conveying concern and giving positive encouragement – should be used where possible.
  2.  Court processes should invite active participation between parties, allow for solutions-focused approaches to be applied and be responsive to change. They should also be structured to draw on the skills and resources of different agencies. The problem-solving court is an example of this approach.
  3. The offender should play an active role in solving his or her ‘problem’. This means giving the offender a ‘voice’ in court proceedings, actively involving them in decision-making, and encouraging them to take responsibility for finding solutions to their problems, including their dysfunctional behaviour. King offers a range of judicial techniques to help offenders become this active agent.
  4. Legal rules and procedures should enable the causative factors associated with the offending to be addressed. For example, drug abuse has a close correlation with criminal offending and mental illness. People affected by a mental disorder are exposed to a range of social, health and legal risk factors. TJ says that the courts should be equipped to respond to these issues in collaboration with relevant treatment agencies and community programs.
  5. In order to facilitate rehabilitation and reduce recidivism, the law should promote behavioural change. One technique is the use of rewards and sanctions to encourage and motivate offenders to engage in behavioural change, complete treatment programs and comply with orders. Review procedures that enable the court to monitor and support an offender’s progress are another.  A third technique is the use of behavioural contracts in court programs to set specific behavioural goals.
  6.  Procedural fairness is a common theme in TJ literature.  It ties in with the notion that TJ is about the law in action, not simply the written law, and that the manner in which decisions are made affects people just as much as what decisions are made. If an offender feels that he or she has been fairly and respectfully dealt with, they are more likely to accept the court’s authority and decision, even if the decision is not favourable.

Read Paula O’Byrne’s full paper that explores TJ and family violence offenders (as well as other great TJ articles) in the International Journal of Therapeutic Jurisprudence

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Therapeutic Jurisprudence for the family lawyer

Guest blogger Taylor LoSchiavo, Center for Families, Children and the Courts, Student Fellow (2016-2017) writes…

Any legal proceeding has the potential to be life changing; however, family law proceedings, in particular, can change the basic family structure for the parties.  One family can become two, which could then become three or more families.  This is not to suggest that such a division is always negative, as it may be needed for the health and safety of the parties, but it is nonetheless life changing in a way that differs from other civil proceedings.

The role of the lawyer/attorney in family law cases during a time of instability, physical division, and financial distress is vital.

Family law cases often involve emotional and mental battles that address child custody disputes, substance abuse issues, and domestic violence, to name a few.   The parties are not merely losing assets, they are losing the very structure of their family as they know it. This deterioration of a former way of life, especially for children and spouses facing contested cases through no fault of their own, is likely one of the most challenging experiences the families will ever face.

Therapeutic jurisprudence focuses on therapeutic and anti-therapeutic factors, including ways in which the legal system can be used to create a more positive role in people’s lives.  While therapeutic factors should not dictate legal outcomes, they should always be considered and factored into the legal equation.

The law almost always acts either therapeutically or anti-therapeutically for parties in the system, and this is no different in family law cases.

Using the law to create more positivity for the parties in any intense litigation can be a challenging but worthwhile endeavor.

Although all legal actors in the court system should promote ideals of well-being, the family law attorney often has the most interaction with the client and families. As a result, he or she is in the best position to utilize the restorative ideals behind therapeutic jurisprudence to better serve clients and truly make a difference.

In litigation that very often promotes outcomes with no clear-cut winners or losers, the family law attorney’s “bedside” manner is important, to say the least.

The way in which the family law attorney counsels and mediates can often be the single greatest determinant regarding whether the parties settle amicably or head to court for a nasty battle that may forever traumatize them.

The ability of the family law attorney to both successfully advocate for a client’s rights while considering the impact on children and the other party is an arduous task, and it should be conducted with compassion, respect, active listening, and an overall foundation in the notion of therapeutic jurisprudence.

About this blog:

Taylor LoSchiavo is a 2016-2017 Student Fellow with the Center for Families, Children and the Courts (CFCC).  Taylor has participated in a three-credit law school course where Associate Professor Barbara Babb teaches about cutting edge family law and family justice system reform, including the theories underlying the work of CFCC.  Since Therapeutic Jurisprudence is at the core of all the work of the CFCC, that is the first concept the students read about, discuss, and attempt to apply/incorporate into their thinking, lawyering, and writing.  One of the course requirements is that each student must write a blog related to something they have learned in the course

Resources for lawyers interested in developing their TJ approach:

Past blog:  Therapeutic Jurisprudence for defence lawyers

Article:  Brooks & Madden, Relationship-Centered Lawyering

Article: Exploring Law-Client Interactions

Book: David B. Wexler, Rehabilitating Lawyers: Principles of Therapeutic Jurisprudence for Criminal Law Practice (2008). Digital version also available on Kindle.

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What judicial officers say about youth justice…

Interviews with Children’s Court magistrates in New South Wales, Australia, provide a rare insight into the views of those working everyday at the coal face of youth justice…

The research of Kelly Richards, Lorana Bartels and Jane Bolitho suggests:

  • magistrates were enthusiastic about the philosophy of both restorative justice and therapeutic jurisprudence measures.
  • magistrates were reluctant to embrace these approaches if they consider them under-resourced, poorly understood and/or poorly implemented.
  • there was support for the more intensive model that TJ measures can provide in response to youth offending.
  • magistrates’ support for therapeutic jurisprudence (TJ) measures was premised broadly on a view that addressing youth offending requires a multi-agency, wraparound approach that traditional court approaches cannot provide.
  • youth justice restorative conferences were supported because magistrates believed they can help young people develop empathy, face the consequences of their actions and take responsibility for their behaviour.
  • the TJ-oriented model then in operation in NSW was supported on the grounds that it provided young people with an intensive, multi-agency response to their complex offending-related needs. However, both of these models were considered to be under-utilised and poorly resourced.
  • magistrates believed that early intervention measures that keep young people out of trouble in the first place were preferable to court.
  • they believed that young people already in trouble require an approach that intensively addresses their offending-related needs (e.g. health, education, substance abuse) via an intensive, well- resourced, coordinated multi-agency approach.

The authors made several recommendations for the improved operation of the NSW Children’s Court, including:

  • the need to properly resource and support TJ and RJ initiatives,
  • the need to reinstate the TJ-oriented Youth Drug and Alcohol Court; and
  • improved judicial education and training.

The research was part of a national study of Children’s Courts in Australia about a wide range of topics.  The NSW component of the study included semi-structured qualitative interviews with all 12 Children’s Court magistrates in NSW. The NSW Children’s Court deals with the vast majority of offences alleged to have been committed by young people that have not been resolved by youth justice conferencing, but it does not have jurisdiction over serious indictable offences (i.e. homicide and offences punishable by 25 years’ or life imprisonment).

Read the full paper here.

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Snapshot: Problem-solving courts in Maryland USA

Guest blogger Kathleen Seifert, Center for Families, Children and the Courts, Student Fellow (2016-2017):

This semester, the CFCC Student Fellows learned about the importance of employing therapeutic jurisprudence[1] and preventive law[2] to maximize positive, therapeutic outcomes for people involved in various courts.

Problem-solving courts “address matters that are under the court’s jurisdiction through a multidisciplinary and integrated approach that incorporates collaboration among court, government, and community-based organizations.”[3]

Problem-solving courts embody the principles of therapeutic jurisprudence and preventive law.

In 2002, the Maryland Administrative Office of the Courts, Office of Problem-Solving Courts was directed to oversee six drug treatment courts in Maryland. Since then, problem-solving courts have seen significant expansion. As of 2015, Maryland has 37 drug treatment courts, two re-entry courts, three mental health courts, nine truancy reduction courts, and one veteran’s court in Prince George’s County, along with a veteran’s docket in Baltimore City. In 2014-2015, it cost $6.2 million to operate these problem-solving courts.[4]

Drug treatment courts are designed to coordinate treatment among criminal justice, mental health, and social service agencies to encourage the participants to break the cycle of substance abuse and addiction. Drug treatment courts operate in all Maryland counties with the exception of Allegany, Garrett, Kent, Queen Anne’s, Somerset, and Worcester counties. Graduation requirements may vary from court to court. To graduate from a drug treatment court, participants may need to complete a variety of program requirements, such as paying restitution and costs, participating in a support group, working toward gainful employment, completing community service, 90-180 days of clean urinalysis, receiving a positive report from the Drug Treatment Court team (including the judge), and/or creating a plan to maintain sobriety after graduation.[5] In 2014-2015, 885 people participated in drug treatment court programs in Maryland, and 499 graduated from their program — a 50.7% success rate.[6]

Mental health courts are designed to identify and treat individuals whose mental illness contributes to their criminal behavior. Mental health courts create treatment plans which can include assistance with employment, housing, mental health treatment, and other community support services. Maryland operates mental health courts in Baltimore City, Harford County, and Prince George’s County. In 2014-2015, Maryland mental health courts treated 702 people.[7]

Truancy reduction courts are designed to improve school attendance and the student’s attitude about education. Truancy reduction courts operate in Baltimore City, Dorchester, Harford, Kent, Somerset, Prince George’s, Talbot, Wicomico, and Worcester counties, although Baltimore City’s Truancy Court Program operates out of the University of Baltimore School of Law’s Sayra and Neil Meyerhoff Center for Families, Children and the Courts and is a voluntary program rather than an official court.[8] Graduation criteria may vary from court to court, but most require some level of demonstrated decreases in absences and/or tardies. In 2014-2015, 341 students participated in truancy reduction court programs, and 254 students graduated from the program — a 74.4% success rate.[9]

What do you think about the success rate of these problem-solving courts?

Do you think that these problem-solving courts should be expanded to serve more Marylanders?

Do you think additional funding should be provided to operate these problem-solving courts?  

Join the conversation …post a comment below…

About this blog:

Kathleen Seifert is a 2016-2017 Student Fellow with the Center for Families, Children and the Courts (CFCC).  Andrew has participated in a three-credit law school course where Associate Professor Barbara Babb teaches about cutting edge family law and family justice system reform, including the theories underlying the work of CFCC. Since Therapeutic Jurisprudence is at the core of all the work of the CFCC, that is the first concept the students read about, discuss, and attempt to apply/incorporate into their thinking, lawyering, and writing.  One of the course requirements is that each student must write a blog related to something they have learned in the course

References:

[1]Therapeutic jurisprudence is the study of the role of the law as a therapeutic agent by serving as a lens that focuses on the law’s impact on an individual’s emotional and psychological well-being. Babb, Barbara A. & David B. Wexler, Therapeutic Jurisprudence, 2 (2014), available at http://ssrn.com/abstract=2360252.

[2] Preventive lawyers assist their clients achieve the client’s goals in a manner that minimizes legal risks, identifies potential future legal dilemmas, and helps the client avoid future legal dilemmas. Winnick, Bruce J., The Expanding Scope of Preventative Law, 3 FLA. COASTAL L. J. 189 (2002).

[3] Maryland Judiciary Administrative Office of the Courts, Annual Report: Problem-Solving Courts, 4 (2015).

[4] Maryland Judiciary Administrative Office of the Courts, Annual Report: Problem-Solving Courts, 8-9 (2015).

[5]Circuit Court for Anne Arundel County, Drug Treatment Court, available at http://www.circuitcourt.org/learn-about/drug-treatment-court. Montgomery County Circuit Court, Drug Court Programs: Frequently Asked Questions, available at http://www.montgomerycountymd.gov/circuitcourt/court/drugcourt/DrugCourt_FAQ.html#_Graduation_Requirement.

[6]Maryland Judiciary Administrative Office of the Courts, Annual Report: Problem-Solving Courts, 13-14 (2015).

[7]Maryland Judiciary Administrative Office of the Courts, Annual Report: Problem-Solving Courts, 14-15 (2015).

[8] Maryland Judiciary Administrative Office of the Courts, Annual Report: Problem-Solving Courts, 16 (2015)

[9]Ibid.

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From Therapeutic Jurisprudence to Roper: When Social Science Serves as Authority in Law

Guest blogger Andrew Siske, Center for Families, Children and the Courts, Student Fellow (2016-2017) explores the role that social science can play in the law…

Continue reading

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Chief Justice: Non-adversarial approaches in criminal and civil law essential to “effective justice”

Court decision on Roe8 legal challenge

At the recent Second International Conference on Non-adversarial Justice: integrating theory and practice The Honourable Wayne Martin AC Chief Justice of Western Australia noted the limitations  of a purely adversarial system and proposed  that development and expansion of the principles of non-adversarial justice is essential if the criminal and civil legal systems are to provide effective justice to the communities which we all serve. 

Read the full address here.

 

 

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