Steering through troubled waters

Cite as: (2007) 81(5) LIJ, p. 30

Therapeutic jurisprudence approaches are helping criminal lawyers guide clients towards rehabilitation.

By Kathy Douglas

Steering through troubled waters

Therapeutic jurisprudence approaches are helping criminal lawyers guide clients towards rehabilitation.
By Kathy Douglas

The practice of criminal law in Victoria has undergone significant change with the introduction of new problem-solving courts such as the Koori, drug and family violence courts and now the establishment of a new division of the Magistrates’ Court, the Neighbourhood Justice Centre in Collingwood.[1]

These kinds of problem-solving initiatives can be categorised as sharing in the legal philosophy of therapeutic jurisprudence (TJ), which is finding favour in many jurisdictions in Australia and internationally.

Therapeutic jurisprudence

The approach of TJ is unique in the law in that the philosophy asks legal actors to consider the impact on the emotional life and psychological wellbeing of those affected by decisions of our justice system.[2] The aim is to draw on the work of the social sciences in charting the therapeutic or anti-therapeutic effect of decisions by courts and justice agencies.

TJ originated in the US from the work of academic co-founders David Wexler and Bruce Winick and was initially applied in relation to mental health law. This approach spread in the law as lawyers and other linked professions, criminologists, social workers and psychologists searched for a framework with which to articulate a more holistic approach to practice. It has been adopted most widely in Australia in our criminal justice system and has informed policy development in the Victorian context, resulting in a number of new courts and support services.[3]

TJ is also seen as a method of changing the traditional litigious culture of lawyers and promoting practice that assists in the furtherance of a client’s overall wellbeing.[4] In this respect, the philosophy of TJ could be said to be an important practice development that criminal lawyers need to understand and reflect on. This philosophy also has implications for legal education and may encourage law schools to include a more holistic approach to lawyers’ education.

Problem-solving courts and restorative justice

The introduction of problem-solving courts into the Victorian court system has been rapid. Courts of this nature have been extensively used in the US and have been introduced into most Australian states.[5]

In Victoria, through new courts and practices there have been opportunities to deal with cultural issues, such as in the case of the Koori Court, and particular societal problems such as in the case of the family violence courts. The purpose section of the legislation for the Neighbourhood Justice Centre explicitly adopts the philosophy of TJ. According to s1 of the Courts Legislation (Neighbourhood Justice Centre) Act 2006 (Vic) (the Act), the purpose of the new court is to provide simplified access to the justice system and apply the philosophies of TJ and restorative justice (RJ) to the administration of justice.

RJ is also a relatively new philosophy in legal practice. It incorporates a restorative rather than retributive approach to sentencing. The most common process used in RJ is group conferencing, but it can also be used more generally to inform a range of initiatives. Practice in group conferencing has not been uniform and there are a variety of different models articulated. However, most often there is a facilitator/convenor, the victim or victim’s representative, the offender and possibly their lawyer, a police person, family members and a youth worker or social worker discussing the offence in a circle arrangement.

Among a number of aims for RJ is that of increasing the participation of the victim in the criminal justice system. The idea is to repair the damage of the offence by restoring harmony and by providing, in many instances, some reparation including community work. For the offender there is the opportunity to understand the experience of the victim, express remorse and be re-integrated into the community.[6] Other practices that could be categorised as restorative include criminal justice diversion programs.

The new court

Both philosophies are key to the operation of the Neighbourhood Justice Centre in Collingwood and to ensure that the decisions of the court reflect these two philosophies, the Chief Magistrate is limited in his choice of whom to assign to the court. Under s4M of the Act, those appointed to this court must have knowledge or experience of TJ and RJ. The court is based on US initiatives such as the Red Hook Community Justice Centre.[7]

Nature of the court

The Neighbourhood Justice Centre is a three-year pilot that will be evaluated. One of its key attributes is its multi-jurisdictional nature. The court will include sittings of the Magistrates’ Court, Children’s Court, Victorian Civil and Administrative Tribunal and the Victims of Crime Assistance Tribunal and one magistrate will hear matters in all jurisdictions. In this respect, the court may present a challenge to some criminal lawyers as it may require them to understand a wide range of legal issues (such as, for example, guardianship) when representing a client.

Importantly, under s4M(3) of the Act there is the requirement that the court exercise its jurisdiction with as little formality and technicality as possible. Also under s4M(7), the Neighbourhood Justice Division must ensure, as far as practicable, that the conduct of the court is comprehensible to parties. These provisions will assist a criminal lawyer to ensure the full participation of their client in the proceedings and reflects the TJ philosophy of providing procedural justice.

Research shows that a client who feels that their voice is heard in proceedings and that they have been treated with dignity by the court is more likely to comply with court orders.[8]

The court’s jurisdiction

The court’s jurisdiction, under s4O of the Act, is restricted to those with a close connection to the area or who reside in the municipality of Yarra. These provisions include the capacity to deal with the homeless who have allegedly committed an offence in the municipality or who are living in the area. A “homeless person” is defined under s3 of the Act to include those in crisis, transitional or supported accommodation. Indigenous alleged offenders who have a close connection to the area will also fall under the jurisdiction of the court. The court will not deal with committals or sexual offences under s4O(4). However, under s4O(2)(b), civil proceedings and family violence are included in the court’s jurisdiction, with similar requirements that there be a connection with the area.

Aids to sentencing

When sentencing, magistrates sitting in the Neighbourhood Justice Centre may, under s4Q(2) of the Act, inform themselves in any way they see fit and may hear from, among others, the occupant of a new position, the Neighbourhood Justice Officer. This officer will be present during court hearings and will assist in linking services.

There will be dedicated Victoria Police prosecutors, Corrections and juvenile justice staff. Services, such as mental health, drug and alcohol, employment, financial and housing support and mediation, will be available.[9] The criminal lawyer will need to liaise with a variety of different professionals and assist in identifying a client’s underlying concerns that may have contributed to the offending, in an effort to minimise the risk of further offending.

Criminal lawyers as “agents of change” for clients

The TJ philosophy presents a challenge to criminal lawyers to reflect on the ways they can better assist their clients in contexts such as the Neighbourhood Justice Centre. Wexler has a number of suggestions to help lawyers practise in a more therapeutic manner.[10] He encourages practitioners to adopt this approach, not only to assist clients to better outcomes, but also to give practitioners a greater sense of satisfaction with their work.

Some lawyers will already be practising in a manner that could be described as through a TJ lens; however, the philosophy does provide a framework for practice, particularly in regard to sentencing, that has arguably been lacking in the criminal law.

A lawyer’s role in client rehabilitation

The first suggestion Wexler makes is the way the criminal lawyer can act as an agent of change for their client. Importantly, Wexler emphasises that lawyers are not social workers or therapists when acting as agents of change, but that as part of the client/lawyer relationship the lawyer can conduct interviews in such a way that change is encouraged. A lawyer practising through the lens of TJ can assist a client to understand and make decisions that will contribute to their rehabilitation.

Discussing the role of the criminal lawyer as change agent, Wexler states:

“Much rehabilitative work lies in encouraging active and meaningful client participation in developing a strong relationship between client and change agent and in fostering client hope and expectancy”.[11]

The criminal lawyer needs to draw on communication skills to ensure that the client has a sense of voice in the court process. The lawyer can ensure, for example, informed consent from the client when undergoing programs such as those envisaged in the Neighbourhood Justice Centre. Lawyers can use motivational interviewing techniques to assist clients to focus on rehabilitative goals and identify “risk” situations, where a client may be tempted to fall back into offending behaviour.[12]

In addition, to assist a client in their rehabilitative outcomes, the lawyer may help them to consider offering an apology. Under s4Q(2)(f) of the Act, there is provision in the Neighbourhood Justice Centre for hearing directly from the victim. This may mean that an offender has the opportunity to apologise to the victim. Particularly for clients who are under the jurisdiction of the Children’s Court, the opportunity to apologise may be incorporated into a group conference, or in the adult context this option may be part of diversion or sentencing. Group conferencing is now explicitly available to the magistrate under s415 of the Children Youth and Families Act 2005 (Vic.). However, an apology needs to be genuine to convince a court.

To facilitate a genuine expression of remorse, Wexler suggests that the criminal lawyer may work with a social worker or psychologist to promote empathy in the offender for the experience of the victim. The criminal lawyer may organise for a psychologist to re-enact the crime where the offender plays the victim and thus comes to understand the victim’s trauma.

Alternatively, videos or tapes can be played which depict victims discussing their experience of like offences thus helping the offender understand the impact of their crime. From such interactions a client may be moved to make a genuine apology of their own volition that will assist in the sentencing process.[13] This kind of approach may be less advisable with children and young people due to a possible sensitivity to pressure.

The question must be asked whether this kind of involvement goes beyond the normal parameters of criminal law practice and whether the TJ approach risks the possibility of the lawyer unduly influencing an offender. Wexler argues that it is a matter for the lawyer’s professional ethics to ensure that they do not overstep the mark in their behaviour towards their client:

“It is thus important for the client to be fully involved in the thinking process, and lawyers should resist the temptation of thinking for the client and of proposing a plan for the client’s acquiescence”. [14]

Another suggestion from Wexler is to delay the court hearing regarding the sentencing disposition in order for an offender to demonstrate to a court that they have reorganised their life in such a way that rehabilitation is likely.[15]Under s4Q(3) of the Act, the Neighbourhood Justice Centre expands the opportunity for deferral of sentence, allowing a magistrate to defer sentence in this court for those who are over 25 years of age. This opportunity was previously limited to those under 25 years of age under s83A(1)(a) of the Sentencing Act 1991 (Vic). On returning to court, the lawyer can be involved in telling success stories to the court and can assist the client to organise the relevant material. Where a client receives a custodial sentence, a lawyer can be involved in planning for strategies to ensure a successful re-entry to the community.

Lawyers and the community

TJ proponents also advise the criminal lawyer to connect more with the community.[16] This approach is integral to the Neighbourhood Justice Centre and consultations by the Department of Justice with the community have already begun. For instance, one area where the community will be involved is in advising about the kind of community work that will be undertaken as part of restorative practices.[17]

Education of criminal lawyers

TJ can also assist in educating criminal lawyers of the future. The possibilities of using TJ are numerous, including integration of TJ into present subjects, development of specific subjects devoted to TJ and the use of this approach in clinical education. Winick,[18] suggests TJ can provide a context for teaching interviewing, counselling and lawyer-client relational skills and promote student reflection on the role of the lawyer in society.[19]

Conclusion

The development of the new Neighbourhood Justice Centre provides the opportunity for criminal lawyers to practise in a court that highly values the philosophy of TJ. Lawyers need to reflect on their practice and adopt approaches that assist clients to the best possible outcomes in this new court. They may also consider incorporating these approaches more generally in their criminal practice.


KATHY DOUGLAS lectures at RMIT University and is part of the teaching team for the new JD program at RMIT. She is also treasurer of the Victorian Association for Restorative Justice.


[1] The legislation to establish this court, the Courts Legislation (Neighbourhood Justice Centre) Act 2006 (Vic) (the Act), received royal assent on 15 August 2006. For more on the court, see “Neighbourhood justice”, March 2007 LIJ, p26.

[2] Bruce Winick and David Wexler (eds), Judging in a Therapeutic Key, 2003, Carolina Press, p7.

[3] Department of Justice, Policy Framework to Consolidate and Extend Problem-solving Courts and Approaches, Courts and Programs Development Unit, March 2006.

[4] Michael King, “Exploring the scope of therapeutic jurisprudence”, May 2006 LIJ, p48.

[5] Arie Frieberg, “Therapeutic jurisprudence in Australia: Paradigm shift or pragmatic incrementalism?” (2003) 20 Law in Context 6. 

[6] Peter Condliffe, “Putting the pieces together: The opportunity for restorative justice in Victoria”, August 2005 LIJ, p54.

[7] For access to information on problem-solving courts in the US, including the Red Hook Community Justice Centre, see the Centre for Court Innovation, http://www.courtinnovation.org accessed 29 March 2007.

[8] Note 2 above, at p129.

[9] Victoria, Parliamentary Debates, Legislative Assembly Courts 7 June 2006, at p1173 (Rob Hulls).

[10] David Wexler, “Therapeutic jurisprudence and the rehabilitative role of the criminal defence lawyer”, (2005) 17 St Thomas Law Review 743.

[11]Note 10 above, at p748.

[12] Note 10 above, at pp748-752.

[13] Note 10 above, at pp753-755.

[14] Note 10 above, at p759.

[15]. Note 10 above, at pp755-756.

[16] Cait Clarke and James Neuhard, “Making the case: Therapeutic jurisprudence and problem-solving practices positively impact clients, justice systems and communities they serve” (2005) 17 St Thomas Law Review 781.

[17] Note 9 above, at p1772.

[18] Bruce Winick, “Using therapeutic jurisprudence in teaching lawyering skills: Meeting the challenge of the new ABA standards” (2005) 17 St Thomas Law Review 429.

[19] Note 18 above, at p471.

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