Since the early 1990s, scholars have begun to consider mental disability law issues through the filter of therapeutic jurisprudence, a model by which to assess the impact of case law and legislation affecting persons with mental disabilities. Therapeutic jurisprudence studies the role of the law as a therapeutic agent, recognizing that judicial decisions and statutes, courtroom procedures, and lawyers’ roles may have either therapeutic or antitherapeutic consequences and questions whether such rules, procedures, and roles can or should be reshaped so as to enhance their therapeutic potential, while not subordinating due process principles. Problem-solving courts, such as mental health courts, are important exemplars of the practical utility of therapeutic jurisprudence. Such courts are grounded and rooted in therapeutic jurisprudence, and they reflect therapeutic jurisprudence theory in practice. This article examines the aims and principles of therapeutic jurisprudence and discusses its implications with regard to problem-solving courts, with an emphasis on mental health courts.
Aims and Principles of Therapeutic Jurisprudence
Therapeutic jurisprudence focuses on the law’s influence on emotional life and psychological well-being, with its ultimate aim being to determine whether these rules, procedures, and roles can or should be altered so as to enhance their therapeutic potential while not subordinating due process principles. There is an inherent tension in this inquiry, but David Wexler—one of the pioneers of this school of thought—identifies how it must be resolved: The law’s use of “mental health information to improve therapeutic functioning [cannot] impinge upon justice concerns” (1993, p. 21). Thus, an inquiry into therapeutic outcomes does not mean that therapeutic concerns trump civil rights and civil liberties.
In recent years, scholars have considered a vast range of other topics beyond mental disability law through a therapeutic jurisprudence lens, including but not limited to domestic relations law, criminal law and procedure, employment law, gay rights law, and tort law. Therapeutic jurisprudence enables scholars and practitioners to utilize sociopsychological insights into the law and its applications; furthermore, it is part of a growing comprehensive movement in the law toward establishing more humane and psychologically optimal ways of handling legal issues collaboratively, creatively, holistically, and respectfully. It optimizes psychological well-being of individuals, relationships, and communities dealing with legal matters, by acknowledging concerns beyond strict legal rights, duties, and obligations. In seeking to use the law to empower individuals, enhance their rights, and promote their well-being, therapeutic jurisprudence has been described as a sea change in ethical thinking about the role of law. Moreover, it is part of a movement toward a more distinctly relational approach to the practice of law, one that emphasizes psychological wellness over what has been called adversarial triumphalism. Therapeutic jurisprudence thus supports an ethic of care.
A central principle of therapeutic jurisprudence is a commitment to dignity. Professor Amy Ronner has described therapeutic jurisprudence as conferring three Vs—voice, validation, and voluntariness. Ronner argues
What “the three Vs” commend is pretty basic: litigants must have a sense of voice or a chance to tell their story to a decision maker. If that litigant feels that the tribunal has genuinely listened to, heard, and taken seriously the litigant’s story, the litigant feels a sense of validation. When litigants emerge from a legal proceeding with a sense of voice and validation, they are more at peace with the outcome. Voice and validation create a sense of voluntary participation, one in which the litigant experiences the proceeding as less coercive. Specifically, the feeling on the part of litigants that they voluntarily partook in the very process that engendered the end result or the very judicial pronunciation that affects their own lives can initiate healing and bring about improved behavior in the future. In general, human beings prosper when they feel that they are making, or at least participating in, their own decisions. (2002, pp. 94–95)
When procedures give people an opportunity to exercise voice, their words are respected, their views are taken into account, and there is less coercion in the process. The question that is asked in each instance is whether any aspect of the legal process—a court decision, a statute, a regulation, and a lawyering practice—adheres to the three Vs as described by Ronner.
Mental Health Courts
In the context of mental disability law, scholars have considered the therapeutic jurisprudential implications inherent in such issues as civil commitment, institutionalization, the forensic mental health process, international human rights law, tort liability, sexual offender law, the death penalty, and many more. One of the most important considerations is the relationship between therapeutic jurisprudence and problem-solving courts, such as mental health courts (other problem-solving courts include drug courts, veterans courts, domestic violence courts, teen courts, and homelessness courts).
Such courts follow the legal theory of therapeutic jurisprudence, so as to best improve justice by considering the therapeutic and antitherapeutic consequences that flow from substantive rules, legal procedures, or the behavior of legal actors. They are designed to deal holistically with people arrested when mental illness rather than criminality appears to be the precipitating reason for the behavior in question. The mental health court judge seeks to divert the individual from the standard criminal court in exchange for an agreement to participate in community treatment and to help participants avoid future criminal involvement.
Mental health courts are premised on team approaches; the judge is assisted by representatives from justice and treatment agencies to screen offenders to (a) determine whether there would be a risk of violence if they were to be released to the community, (b) devise appropriate treatment plans, and (c) supervise and monitor the performance in treatment. The judge is part of a team that decides whether the individual has treatment needs and can be safely released to the community. The team formulates a treatment plan; next, a case manager and monitor (employed by the court) track the individual’s participation in the treatment program and subsequently submit periodic reports to the court concerning the individual’s progress. Participants report to the court on a periodic basis so that treatment compliance can be monitored by the judge; additional status review hearings are held when needed.
To be effective, the judge needs to develop enhanced interpersonal skills and awareness of a variety of therapeutic techniques. These skills and techniques help the judge motivate the offender to participate effectively in treatment. The judge must be able to both build trust and manage risk, convey empathy and respect, communicate effectively with the individual, and listen carefully to what the individual has to say. Optimally, this aims to fulfill the individual’s need for voice and validation and earns the individual’s trust and confidence. The employment of motivational interviewing technique is a significant part of this process.
These courts provide nuanced approaches and may, eventually, signal a fundamental shift in the criminal justice system, one often premised on retribution and punishment. A successful mental health court needs (a) a therapeutic environment and dedicated team, (b) an environment free from stigmatizing labels, (c) opportunities for deferred sentences and diversion away from the criminal system, (d) the least restrictive alternatives, (e) decision-making that is interdependent, (f) coordinated treatment, and (g) a review process that is meaningful. It is essential that such courts be free of any pretextual dishonesty, which refers to either implicitly or explicitly accepting testimonial dishonesty or engaging in dishonest (and frequently meretricious) decision-making, specifically when witnesses (e.g., expert witnesses) show a propensity to purposely distort their testimony in order to achieve desired ends.
Skeptics argue that these courts are too dependent on the aura of the charismatic judge. However, research demonstrates that litigants before a judge who adheres to these principles report a higher score on a dignity scale (and a lower score on a perceived coercion scale) than any previously studied group of criminal defendants. The real-life experiences of the litigants in cases before this judge demonstrate that such a court can be a noncoercive, dignified experience that provides therapeutic jurisprudence to those before it.
There are two concerns about mental health courts that have not been the focus of much attention: the lack of concern paid to the question of competency in the mental health court process and the lack of concern paid to the question of the quality of counsel made available to individuals in the mental health court process. Given the impaired cognition that accompanies many mental disorders, there is little evidence to suggest that mental health courts ensure that prospective candidates are competent to accept the plea bargains into which many enter, as required by constitutional law. Indeed, the target litigant of mental health courts may be precisely the sort of individual who does not fully comprehend the purpose, requirements, and roles in the courts. In fact, research has revealed that the majority of defendants at two mental courts lacked nuanced information about the trial process and that a minority of defendants had impairments in legal competence. Thus, a thorough evaluation of the offender’s mental competence is essential in the mental health court process. One intriguing recommendation has been to create competency courts as subspecialty courts within mental health courts to improve the competency process and reduce the unnecessary time that persons with mental illness spend in jail; however, there it does not appear that this recommendation is being acted upon.
On the question of counsel, there are serious concerns as to whether persons with mental disabilities receive adequate legal representation in civil commitment and criminal justice processes.
Some clients with mental illness may lack confidence that their attorney is acting in accordance with their wishes, especially if the attorney has no specific training in mental disability law. Thus, to ensure that defendants receive dignity and respect, are given a sense of voice and validation, and are treated with fairness and good faith, it is important that they be aware of the advantages and disadvantages of accepting diversion to mental health court.
References:
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