Professor David Wexler writes…
I recently learned of a very pro forma—but successful—felony expungement proceeding, a proceeding that puts into sharp focus the difference between the Therapeutic Design of the Law (TDL) and the Therapeutic Application of the Law (TAL).
The Petitioner, with a many year old felony drug conviction and otherwise lawful behavior, hired a lawyer to represent him in a proceeding to eliminate the conviction from his record. Local law permitted the elimination after the required waiting period, a process that requires a hearing if the court or prosecutor requests one. It seems that, in these cases, a hearing is generally held, although, as in this case, the prosecutor often does not object to the cleansing of the record.
Here is how the whole process played out:
The petitioner was asked by the lawyer to secure two or three witnesses to his good character—to his “good reputation in the community”. He easily recruited a few friends and took their basic information (age, civil status etc) and forwarded this information to his lawyer. In the case of one witness, in addition to providing the very basic requested information, the witness noted that he had seen the petitioner in a work environment, supervising youths in recreational activities, and that the petitioner had performed with high competence and responsibility.
The lawyer didn’t personally interview the witnesses, and prepared the required affidavits in a bare-bones manner, not including, for example, the comment by the one witness who volunteered information about the petitioner’s work behavior.
A hearing was ultimately held, at which time the three witnesses appeared in court. Then and there, the prosecutor, while waiting for the judge to enter the courtroom, asked each prospective witness two questions:” how long have you known the petitioner?”, and “what is his reputation in the community?”
The judge entered the courtroom, called the case, and the petitioner and three witnesses stood and came forward. The petitioner’s lawyer moved for the expungement, the prosecutor said he had no objection, the judge asked the petitioner how he was doing, and then ruled the conviction expunged. Petitioner, witnesses, and a few relatives and friends left the courtroom. The petitioner was pleased that this was behind him, thanked the lawyer, witnesses , friends and family, and that was that.
So what are we to make of all this?
First, the expungement law is one that is TJ-friendly: it is a well-designed law. Given the result and the satisfaction of the petitioner, should we in the TJ community ask/hope for more?
Surely, more could have been done by lawyer, prosecutor, and judge, and could have led to a much more robust therapeutic application of the law—of course with the identical result of expungement.
- The lawyer could have interviewed the witnesses, probed them for positive details, and could have prepared impressive factual affidavits
- These affidavits would have alerted the prosecutor to the facts underlying the petitioner’s good reputation in the community, making even more likely the prosecutor’s non-objection to the petition.
- The lawyer, in asking for the expungement, could have emphasized these facts, commending the petitioner for his behavior and his demonstrated strengths.
- The prosecutor, having no objection to the expungement, could also have emphasized the favorable facts and could in fact have joined in the motion to expunge.
- The judge could have reiterated all this, congratulating the petitioner, giving a shout out to the family and friends, and wishing the petitioner well for the future.
So the question becomes: was this minimal therapeutic application of the law a missed opportunity? Or would a proposal to expend the extra effort yield pushback as an unnecessary waste of time in an overloaded court system? I think the question is well worth asking and discussing.
I’m sure there are some in the managerial “efficiency above all” camp that will be in the pushback group. So permit me to make the case that a robust therapeutic application of the law can serve many important purposes.
TJ is an approach that invites legal actors to look beyond the law to other disciplines to determine what would improve the wellbeing of people coming in contact with the law. In the case of the expungement hearing, we could of course draw on psychology but also on criminological theory of desistance (that is the study of how people desist from or stop offending). In the desistance theory it is said that the pathways to desistance are through repaired relationships with community and the state and not just through ‘correction’ of the individual. The expungement process is key to repairing the relationship with the state. Desistance also is said to require a shift in identify from a pro-criminal identity to the pro-social identity. The expungement hearing could therefore be a means of not only acknowledging this shift but of cementing it, providing encouragement to continue with this new identity into the future.
And consider also what we might call “secondary” or “vicarious” therapeutic effects:
- If expungement hearings were to be held at the start of a busy court room where current offenders are present, those hearings may serve as a beacon for offenders to see how they too could make the shift; and
- Witnessing the process may also serve as a psychological boost to lawyers, prosecutors and judges— who may otherwise be ground down by the recidivism they see in their busy criminal lists– to be reminded that rehabilitation can and does happen, and that the therapeutic application of the law can be inspiring and sustaining.
This blog is also available via SSRN
Have something to contribute to this discussion? Post a comment below.