The Therapeutic Application of the Law & the need for ‘Amicus Justitia’ Briefs

Therapeutic Jurisprudence founder David B. Wexler writes… 

Since I wrote my essay New Wine in New Bottles  where the legal landscape or code provisions were thought of as “bottles” and the developing TJ practices and techniques were thought of as the new “wine” or “liquid”, I have been thinking about how some new types of legal writing are in order.

The New Wine article spoke fancifully about the need to sketch a TJ “code” (scare quotes intentional) of proposed criminal processes and practices, where the hypothetically blackletter TJ-friendly provisions could be accompanied by a “commentary” section detailing how TJ practices could be poured into the code provisions.  A TJ-friendly provision, therefore, speaks only of the law’s potential to be applied therapeutically: to live up to its therapeutic potential, legal actors (judges, lawyers, others) need to use the types of TJ practices that the so-called friendly law would allow.

Two quick examples:

  1. An ordinary provision allowing for the imposition of probation would seem to be TJ -friendly.  But a judge who unilaterally orders probation and its conditions would not be taking advantage of an available therapeutic opportunity.  On the other hand, consider a judge who begins the process by soliciting the offender’s input: asking the offender to personally justify a probationary sentence and the conditions the offender deems necessary and appropriate (eg, curfew, AA meetings, school attendance). According to the procedural justice literature, this latter procedure should increase offender compliance and sense of fair treatment.
  1. In the US federal system, courts cannot be involved in plea discussions. But some states—such as Arizona—permit judicial mediation in Criminal Settlement Conferences, and would thus be considered to have significant TJ potential. Yet, in some instances, judges assigned as settlement judges may simply ask counsel if they have considered a settlement and if they would like to have some additional time to think about it. On the other hand, a judge like the late Michael Jones, a true leader in TJ, held robust, well-organized settlement conferences with counsel, the defendant, the victim, family members and friends of both. The statements made at the conference are inadmissible in court if matters breaks down, and that provision allows for apologies and the like. Mike Jones was taken at how often an apology began with a statement from the defendant’s family. In any event, judges like Judge Jones were legal actors who filled the settlement procedure with impressive TJ practices and techniques. (See: Wexler, D. & Jones, M, Employing last best offer and criminal settlement conferences)

Recent TJ literature sometimes speaks of the “bottles” as matters of Therapeutic Design of the Law (TDL) and the “wine” or practices and techniques as the Therapeutic Application of the Law (TAL).  What’s more, for TJ to thrive, TDL and TAL should be seen as interrelated, as a seamless methodology of assessment and reform.

In other words, we now have a coherent way of looking not only to the text of the law, but also to the therapeutic application of the law—and this living law is often neglected in law reform efforts.

To remedy this, I can even envision a new type of professional specializing in TAL. And in a recent keynote address in an international TJ conference in New Zealand, I noted that “a TAL specialist will need to concentrate on a somewhat different form of legal writing: bullets, suggested scripts, visual aids, crisply stated best practices—ways of conveying important material to busy legal actors willing to give the TJ way a good effort, but in need of an engaging and efficient way to get and stay up to speed.” (See: Wexler, D. Moving Forward on Mainsteaming of TJ)

The Amicus Justitia Brief Proposal

The new type of legal writing I propose here can incorporate the suggestions and concerns already listed.   Just as we have amicus curiae briefs to give input to appellate courts, we need a category of amicus justitia—friend of justice—briefs to orient and educate the legal actors capable of applying the law in a therapeutic manner.

Usually, this will involve courts, but the breadth of TJ suggests such briefs could have enormous value in other domains—with educators, employers, police officers, and many more.

These briefs could range from crisp blogs to longer articles or manuals. In addition to educating relevant audiences, such TAL briefs can help with the particularly challenging goal of sustainability. The law itself—being binding, published, readily accessible—does not ordinarily pose a sustainability issue. Not so, of course, with creative non-standard but permissible application of the law!

Let’s take a look at a few examples, going from the simplest to the important but unexpected:

  • The probation and the criminal settlementexamples given earlier are TJ-friendly laws that can be given a big TAL boost through the publication of amicus justitia briefs indicating how TJ can profitably be infused in those stages.
  • I published a blog on an expungement proceeding—TJ-friendly on its face—where expungement was the result but where the rapid pro forma proceeding fell far short of the therapeutic boost it could have provided. (See: Wexler, D. A Pro Formal Expungement Proceeding? A Lost Therapeutic Opportunity). Surely, lawyers and judges should be educated on the simple ways that TJ could, with minimal additional effort, be injected in such proceedings.
  • A recently-enacted “therapeutic diversion” Puerto Rico Criminal Procedure Rule offers a diversion option to many persons charged with diverse offenses and found to have addiction problems. The eligible persons are evaluated and a Treatment Plan is then prepared by an interdisciplinary team and submitted to the court. Upon the eligible person’s acceptance of the plan, the diversion program will be set in motion. The language of the statute could be read to suggest the team will prepare the plan, and then present it to the defendant to accept or reject. That language could incline judges so to interpret the rule. But of course, nothing in the language says that the team must prepare with plan without the very active participation and feedback of the defendant. An amicus justitia brief could ensure that courts and treatment teams are aware of the important TJ/procedural justice literature on how the crucial role of “voice” leads to greater compliance and feelings of just treatment. Such a brief could result in a much more therapeutic–and successful—application of the new law.
  • Perhaps the most important example of the need for a clarifying amicus justitia brief relates to the Hawai’I HOPE Probation program, especially in light of the excellent recent writings by Professor Lorana Bartels, an Australian legal scholar who visited Hawai’I, sat in on relevant judicial proceedings, and interviewed Judge Alm, the founder of the program.  The program looks like a strict deterrent approach, without a rehabilitative component. The program focuses on swift, certain, and proportionate consequences to misbehavior.  It begins with a “warning hearing” where new probationers are told of how they need to call in each weekday to see if they need to come in for a urine test. Failures are handled in a “sanction hearing”, where specified, but generally modest, responses are imposed. Probationers who do well for two years may be released early from probation, which ordinarily would continue for a couple more years.  The program has been very successful in Hawai’i, and has now been adopted by many other jurisdictions—in some of which the success rate has not matched that of Hawai’i.  The fascinating, surprising, and highly important finding of Bartels’ work is that, although HOPE in the law books looks like a pure deterrence approach, wiped clean of rehabilitative rhetoric, Bartels concluded from her observations that HOPE is largely a TJ program!  Her impressive work—a blog, a book, and more—details how Judge Alm acted with a heavy dose of TJ and procedural justice. For instance, his “warning hearings” are group hearings, done not only to conserve judicial resources but also to convey to the participants that they will all be treated the same—and that the judge wants each one of them to succeed.  There is much more here of course, but another interesting point is that, as noted above, if one does well in the program, candidates can terminate the program early – clearly a TJ-friendly design feature.  Here, an amicus justitia brief seems essential: without it, judges in other jurisdictions would never know of the TJ component—and the clear possibility that the TJ component may be responsible for HOPE’s success in its home state. So, a brief here will provide an educational/orientation function and, of course, will help sustainability.

Conclusion

So, where do we go from here?  I for one have given my students an assignment to review the new Puerto Rican Therapeutic Diversion Rule and in essence to prepare an amicus justitia brief, relating to judges, defense lawyers, prosecutors, and treatment personnel.  And my new research assistant, Karla Gonzalez, who has been heavily involved in pro bono TJ activities, has taken on this project as her major paper assignment. My outgoing excellent research assistant Myraida Melendez is helping with a power point presentation on this issue—in English and in Spanish.

This type of brief-writing should prove an excellent teaching tool for students, and should clearly orient them to a TJ component in their practice. Of course, professionals and academics in law, psychology, criminology and other fields could contribute mightily to this enterprise.

Often, longer papers will be called for here, depending of course on the particular statute receiving TAL attention. But many such attempts should be suitable for blog treatment. And I hope the Therapeutic Jurisprudence in the Mainstream Blog will be an appropriate outlet for many of them—either as a free-standing occasional series of Amicus Justitia or, perhaps, folded into the existing Court Craft Series.

A copy of this blog is available on SSRN here.

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8 Responses to The Therapeutic Application of the Law & the need for ‘Amicus Justitia’ Briefs

  1. mperlin2014 says:

    David, This is such a welcome addition to the literature, and it made me think of something that I should know the answer to: Has anyone ever done a non-anecdotal, valid-and-reliable study of how many judges, prosecutors, defenders, probation officers, etc, have actually *heard* of TJ, and of those who have, how many have any idea what it really is? I recall reading recently, “TJ only relates to criminal sentencing” and elsewhere, “There is no TJ movement in the UK.” Both demonstrably wrong, but who knows how many believe those untruths and many more? Are there any studies as I suggest? They wd be so helpful for all of us!

    All the best, and thank you again for this, Michael

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  2. david wexler says:

    I dont But know about such studies michael. Maybe carrie Petrucci would have some info as she surveyed judges long ago about how they use TJ
    Anyway , I think a terrific and painless way to educate judges and others about TJ and practice is through the TJ Blog and especially the Court Craft and (hopefully) the Amicus Justitia sections. This demystifies TJ and shows it’s straightforward and easy to understand and apply.

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  3. Nina Hudson says:

    Thank you for this great blog post/discussion. I wanted to flag my interest in this area generally and from the perspective of my PhD research examining ‘court-craft’ of judicial officers in the delivery and communication of sentences for family violence offences through the TJ lens.

    I am examining legal writing, in the form of written sentencing judgments, and evaluating judicial communication techniques and other factors, such the use of particular language or ‘scripts’ from a TJ perspective. I am also looking at oral sentencing judgments in the summary jurisdiction.

    I plan to use my analysis of written decisions to identify examples of particular techniques and explore the effect of particular techniques (including communication approaches) through interviews with a small sample of family violence perpetrators and consider possible flow on effects on victim safety).

    So my research could provide another example for application of amicus justitia brief – to educate on sentencing delivery?

    Just thinking out loud there could also be interesting links/implications for legal writing from an access to justice perspective, and the implications of particular communication techniques for offenders with a disability who have communication difficulties and their ability to understand the message being delivered by the judge in sentencing (or other other legal writing).

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  4. davidbwexler says:

    hi,nina….thanks for great comment. i think your work could easily fit the amicus justitia brief format and in any case would love to see you publish a blog on your work. im hoping paulines Judicial Interest group will get off the ground and encourage interaction on matters relating to your work and more. i may have earlier sent you a related essay i wrote, which is on ssrn here: https://ssrn.com/abstract=2677431 keep up the good work!! david

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    • mainstreamtj says:

      Yes Nina your work is really interesting. Let’s keep the conversations going about the conversations!

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      • Nina Hudson says:

        Thank you mainstreamTJ, David and Michael for your positive comments! It’s so great to hear that there are links to what I am doing with your work in this area and would love to contribute to the amicus justitia brief project. I will be sure to get to work on a blog piece also. Your comments and previous writing on this are also incredibly helpful to progress my thinking. Looking forward to more conversations about this!

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  5. mperlin2014 says:

    Nina, thank you so much for this wonderful post. Your observation that “I am examining legal writing, in the form of written sentencing judgments…” inspired me to post this to offer some complementary thoughts.

    The first case that I always assigned to my criminal law students was Judge Frankel’s opinion in United States v. Bergman, 416 F.Supp. 496 (E.D.N.Y. 1976) in which Frankel basically sets out the reasons for Federal sentencing guidelines. Bergman was a miserable human being (there is no nicer way of putting it) who ran crooked nursing homes in which patients were maltreated; he pled to a tax evasion charge that had nothing to do with the conditions in the homes. It is, I am 99.9999% sure, the first published case ever in which a judge gives his reasons for his sentence.

    We spent a whole class discussing this case from every angle (it talks about the different rationales for punishment and quotes Immanuel Kant, among others [which made my philosophy majors delirious with joy]) and it really sets the table for all conversations about punishment for the rest of the term. I also gave the students the lyrics to Bob Dylan’s song Joey, about the mobster Joey Gallo:

    “What time is it?” said the judge to Joey when they met
    “Five to ten,” said Joey. The judge says, “That’s exactly what you get”

    I tell them that that is precisely what every sentencing case I ever had was like when I was a Public Defender — that judges never explained (they never had to) their decisions, and that that all changed in the aftermath of the Bergman case (at least in states that adopted guidelines systems). I share some stories about my own cases, and always wonder — in cases where the judge told me he had lowered the sentence because of my persuasiveness at elocution — what would have happened had I had a flat tire on the way to court and thus had been off my game? Likely, my client would have spent more years in state prison (for reasons having nothing to do with the seriousness of the crime, the status of the victim, etc.).

    I revisit this now, because Nina’s post reminds me that the Bergman case is one with a true TJ focus even though it preceded TJ by years. Keri Gould, Debbie Dorfman and I have written about how the great institutional rights cases in the 70s all were TJ in spirit, again, before TJ came to light. See Therapeutic Jurisprudence and the Civil Rights of Institutionalized Mentally Disabled Persons: Hopeless Oxymoron or Path to Redemption? 1 PSYCHOLOGY, PUB. POL’Y & L. 80 (1995), reprinted in LAW IN A THERAPEUTIC KEY: DEVELOPMENTS IN THERAPEUTIC JURISPRUDENCE 739 (D. Wexler & B. Winick eds. 1996). In David Wexler’s terrific chapter, Mental Health Law and the Seeds of Therapeutic Jurisprudence, in the new book edited by Tom Grisso and Stan Brodsky (THE ROOTS OF MODERN PSYCHOLOGY AND LAW: A NARRATIVE HISTORY, see https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3129093, David talks about how some of his pre-the-articulation-of-TJ articles were “implicit TJ.” In the same way, so was Judge Frankel’s opinion in Bergman,

    This leads me to this: a great topic would be going through different areas of the law and identifying TJ forerunner cases that led other judges to adopt a TJ esprit without it ever being articulated. I have posted before about what I call the “Moliere moment” – when the lightbulb goes off and people realize they have been practicing/writing about/teaching about TJ for years without ever acknowledging (or knowing) it. I hope Nina’s post inspires others to take up this challenge in other areas of the law.

    All the best,
    Michael Perlin

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  6. Pingback: Restorative practices to further therapeutic jurisprudence in Family Courts (An Amicus Justitia Brief) | Therapeutic Jurisprudence in the Mainstream BLOG

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