Three Kinds of Therapeutic Jurisprudence (and One Kind of Not-TJ)

Guest blogger Professor Emeritus of Law Michael Perlin writes…

I am now home from a magical time in Prague (what a city!), having attended the biennial International Academy of Law and Mental Health Congress. I have missed only once since 1992, and this was, I thought, the best of all.

Most days, I attended sessions back-to-back-to-back, starting at 8 a.m., and continuing until 6 p.m. I was privileged to be able to present the 2017 Bruce Winick Award for Excellence in Therapeutic Jurisprudence to Magistrate Pauline Spencer, keeper of this blog.

I was thrilled to be part of the official launch of the International Society for Therapeutic  Jurisprudence. And, thanks to Nigel Stobbs’s cell phone video, my singing YMCA at karaoke night will be on Facebook for eternity!

I am doing this blog post now to share some ideas I have as a result of the substance of the conference – not just the TJ sessions but some of the other ones as well. My ideas about the current state and possible future state of TJ have been solidfying recently, and I hope that these ideas will be of interest to some readers of this blog.

In a recent piece, one of TJ’s co-founders, David Wexler, talked about the “intricate and intimate relationship … between what we might call the Therapeutic Design of Law (TDL) and the Therapeutic Application of the Law (TAL)” (David B. Wexler, Moving Forward on Mainstreaming Therapeutic Jurisprudence: An Ongoing Process to Facilitate the Therapeutic Design and Application of the Law, in Therapeutic Jurisprudence: New Zealand Perspectives (Warren Brookbanks ed. 2015)).

And I think David was absolutely right about this, and that these are two of the kinds of TJ that panelists spoke about:

  • TJ as a methodology that considers the role of TJ in the entire legal process (and how that process, on a meta-level, should be re-shaped to comport with TJ principles); and
  • TJ as an application that considers how TJ principles apply to substantive areas of the law, including judicial decisions, statutory law and administrative directives, and roles of lawyers.

Thus, papers such as Nigel Stobbs on Everything You Wanted to Know about TJ Methodology But Were Afraid to Ask or Michel Vols’ on Therapeutic Jurisprudence as a Theory and Methodological Basis in Doctrinal and Socio-legal Research or Pauline Spencer’s on A Therapeutic Jurisprudence Informed Framework for Sentencing in Criminal Courts (and many others) all focused, in different ways, on issues of methodology.

Papers such as Shelley Kierstead’s on Addressing Academic Difficulty and Disappointment in Higher Education: Developing TJ Complaint Procedures or David Yamada’s on Addressing Workplace Bullying, Mobbing and Incivility in
Higher Education: The Roles of Law, Cultures, Codes and Coaching or Heather Ellis Cucolo’s on Therapeutic Jurisprudence and Sexual Offending: Innovations in the Neurological and Legal Underpinnings (and many others, including mine on mental health courts and judicial teleology in criminal cases involving biological evidence) all focused on issues of application.

But there was a third category of papers, and I think it is necessary that we spend some time thinking of them as well – papers that never mentioned TJ but were, in their essence, TJ to the core.

For some years, I have been referring to such papers as “Moliere moments.” In Moliere’s play Le Bourgeois Gentilhomme (1670), a character says, paraphrasing, “These forty years now I’ve been speaking in prose without knowing it!”

I have been struck for years how often I have heard essential TJ papers without TJ ever being mentioned, and some of the papers that I was fortunate enough to hear at this conference were, in fact, Moliere moments.

I mention only two here, but there were many more. In one, Eleanore Fritze (a legal aid lawyer from Victoria, Australia, whose caseload is substantially the representation of persons with mental disabilities subject to commitment or in institutions) spoke on Regulation of Compulsory ECT under Victoria’s Mental Health Act 2014: Transforming Law into Practice; in the other, David Shapiro (a professor of psychology and forensic psychologist who frequently testifies in complex criminal cases) spoke on The Misuse of Psychological Assessment in Capital Sentencing Procedures.

Eleanore’s paper exposed the pretextual behavior of the Mental Health Tribunal (that word is mine, not hers) in allowing cases in which the hospital seeks to impose electroshock (known as electroconvulsive in some jurisdictions) treatment on a patient to be heard within a matter of hours of the application being made (50% are heard within one day and 70% within two days (see the MHRT Annual Report 2016 here) and without the appointment of counsel (despite Victoria Legal Aid’s best efforts, only around 8% of patients get legal representation at these hearings, in large part because of the rush to list them)/

David’s paper revealed the way some expert witnesses in death penalty cases fraudulently (again, the word is mine) raised the IQ scores of racial minority defendants as part of “ethnic adjustments” to make them (inappropriately) eligible for the death penalty.

Both of these topics are of great interest to me, and I have written (from a TJ perspective) both about the essentiality of counsel in all matters involving involuntary psychiatric hospital treatment and about the proesecutorial misconduct at the base of the “ethnic adjustment” scam.

What struck me about both of these presentations was that they were infused with TJ principles: answering the question of “whether legal rules, procedures, and lawyer roles can or should be reshaped to enhance their therapeutic potential while not subordinating due process principles” (Michael L. Perlin, “Everybody Is Making Love/Or Else Expecting Rain”: Considering the Sexual Autonomy Rights of Persons Institutionalized Because of Mental Disability in Forensic Hospitals and in Asia, 83 Wash. L. Rev. 481 (2008)), endorsing the “three Vs” of voice, validation and voluntariness articulated by Professor Amy Ronner (Amy D. Ronner, Songs of Validation, Voice, and Voluntary Participation: Therapeutic Jurisprudence, Miranda and Juveniles, 71 U. Cin. L. Rev. 89, 94-95 (2002)), and underscoring the truth that “the right to counsel is … the core of therapeutic jurisprudence” (Juan Ramirez Jr. & Amy D. Ronner, Voiceless Billy Budd: Melville’s Tribute to the Sixth Amendment, 41 Cal. Western L. Rev. 103, 119 (2004)). I share all this because I think it is critically important that we be vigilant about searching out and identifying (and disseminating) TJ-focused papers and presentations, whether they articulate a TJ base or not.

Having said all this, I remain troubled about the reverse phenomenon of the Moliere moment (and I do not yet have a snappy desciptor for it; readers are welcome to offer suggestions) – what happens when a court or tribunal professes to be following TJ principles, but is not.

I wrote about this first some five years ago, discussing the important ethnographic research done by New Zealand scholar Katey Thom, who pointed out in her massive study of  mental health tribunals in New Zealand – which claim to be TJ-motivated (see e.g., Kate Diesfeld & Brian McKenna, The Therapeutic Intent of the New Zealand Mental Health Review Tribunal,  13 Psychiatry, psychol. & L. 100 (2006)) — that “members firstly determine the outcome they prefer and then select the evidence to accord with this view,” and that “Tribunals have also been seen to be merely ‘rubber-stamping’ medical opinions[; d]ecisions are based on the treating clinician’s perception of what the patient needs, rather than strict application of legal tests.” (Katey Thom, “Balancing Individual Rights with Public Safety”: The Decision-Making of the Mental Health Review Tribunal in New Zealand (June 2011) (paper presented to the International Academy of Law and Mental Health annual Congress, Berlin, Germany, June, 2011), at 3 (on file with author), as quoted in Michael L. Perlin, Promoting Social Change in Asia and the Pacific: The Need for a Disability Rights Tribunal to Give Life to the UN Convention on the Rights of Persons with Disabilities, 44 Geo. Wash. Int’l L. Rev.  1, 33 (2012)).

Similarly, the Victorian mental health tribunal identifies TJ as a key concept underpinning its ‘solution-focused’ approach (see Eleanore Fritze , Shining a Light Behind Closed Doors: Report of the  Jack Brockhoff Foundation Churchill Fellowship to Better Protect the Human Rights and Dignity of People with Disabilities, Detained in Closed Environments for Compulsory Treatment, Through the Use of  Legal Services (2015),
discussing  MHT (Victoria), A Guide to Solution‑Focused Hearings in the Mental Health Tribunal13-15 (2014)).

As was made clear in Eleanore’s paper, if counsel is not appointed in involuntary electroshock application cases, then there can be no true TJ in the proceedings. Such tribunals may pay lip service to the role of therapeutic jurisprudence, but they are not providing it.

So, again, there is much to be happy about, but also some to be concerned about.

My hopes are that:

  1. TJ scholars will continue to focus both on the methodology and application arms of TJ;
  2. we will all be vigilant about searching out “Moliere moment” TJ papers (even if not named as TJ papers) and connecting the authors with the TJ community; and
  3. we become vigilant in calling out those who profess to be doing TJ but are not (often, who are acting in total opposition to TJ precepts).

I will be doing all of these, and I hope some/many of you will be joining me.

Michael L. Perlin, Esq. Professor Emeritus of Law
Founding Director, International Mental Disability Law Reform Project
Co-founder, Mental Disability Law and Policy Associates
New York Law School
Email: mlperlin@mdlpa.net 

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