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
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.
cover