Therapeutic Jurisprudence for defence lawyers

In this blog post Dana Segev provides TJ techniques for defence lawyers who wish to improve their effectiveness…

It has long been acknowledged by Therapeutic Jurisprudence (TJ) that lawyer’s actions can have important consequences for defendants.  Defence lawyers received particular focus in TJ literature, and techniques have been developed to enhance their clients’ emotional well-being and readiness for rehabilitation.   In a recent book chapter in “Positive Criminology” (Routledge) I look at the role of defence lawyers, particularly those who represent youth defendants.  The chapter adds to the pool of knowledge on the topic by turning to a concept referred to as “positive criminology” and re-examining the therapeutic consequences lawyers can foster in young defendants by merging relevant aspects of each concept.

Defence lawyers are in a prominent position to promote therapeutic consequences for their clients since they are able to identify problematic issues and act as a witness to the challenges and changes the youth person undergoes throughout the criminal process.  TJ techniques for lawyers are often called “client-centered approach”, which requires the lawyer to step outside of their traditional role and also express care for non-legal areas that the youth may need help with.

A key aspect in promoting therapeutic consequences is, of course, the nature of the relationship between the lawyer and the youth person, and the chapter explores three main positive influences that can emerge from the young defendant’s relationship with his/her defence lawyer:

1. providing the youth with a voice and thereby reinforcing a sense of legitimacy, compliance, and readiness for rehabilitation;
2. encouraging meaningful participation in the court process;
3. fostering positive experiences that are emphasized by positive criminology as significant for rehabilitation (such as human closeness, support, acceptance, optimism, and hope).

Giving the Youth a Voice

It is not only through zealously advocating for a client that a lawyer can give a young person a voice.  Attention can be paid to the manner in which lawyers prepare their clients to speak in court.  How does the lawyer approach the youth’s opportunity to express themselves in court?  Do they tell their clients what to say?  Does the youth participate meaningfully in deciding what he/she should say and how?  And what role does the lawyer play in this issue?  The youth’s “voice” — meaningful participation and a sense of self-determination — can be enhanced by involving them in the planning of what they should in court, thus, avoiding giving the youth a “ready-made” speech.

Lawyers and their young clients are more likely to face difficulties regarding the oral competence.  The anxiety surrounding their circumstances and pressures in court proceedings can undermine their ability to engage in a coherent manner, resulting in poorly elaborated and nonspecific responses as well as in engaging in poor eye contact. The behavior exhibited by the young person, under such circumstances, can produce misperceptions regarding their authenticity, motivation, and care for the victim. Recognition by criminal justice actors of these unintended consequences is important and developing more tactics to overcome this issue is still very much needed.  The manner in which lawyers approach this issue can determine the extent to which they can cultivate the youth’s “voice,” promote a sense of inclusion, strengthen procedural justice and the client’s sense of legitimacy.

Meaningful Participation

Meaningful participation by the youth person refers to the manner in which they engage with the court process.  Is the young person “standing out,” “looking in,” and hope for the best outcome?  It is important that the youth defendant understands what is going-on during court proceedings and why, as well as take an active part throughout the process.  It is worth emphasizing that participating meaningfully involves not only understanding “what is happening”, but also “why it is happening” or how what is happening is related to them.  Lawyers can pay attention to how their clients absorb the criminal process, whether they understands the what and the why.  Participating meaningfully can encourage two main elements:

• First, meaningful participation can encourage further active participation of the client in the court proceedings and promoting change in their own life.
• Second, meaningful participation can ignite the interest of the client in the process itself rather than placing most of the attention on the outcome or penalty.

Fostering Positive Experiences

Positive criminology focuses on how positive experiences can help promote change and, thus, the “fostering positive experiences” section in the chapter discusses how lawyers can promote these positive experiences.  Both Positive criminology and therapeutic jurisprudence proposes that focusing on achievements of the client, even small ones, will reinstall hope in their ability to succeed, as well as prepare the grounds for rehabilitation.  Reaffirming remarks of how well they are doing; pointing and acknowledging when they upheld their conditions, and celebrating when the youth successfully completes a rehabilitation program, can produce therapeutic consequences. 

Positive criminology suggests some practice principles that can improve the relationship between the lawyer and the youth person. First, a sense of closeness can be encouraged by adopting prosocial modeling techniques, such as actively listening; complimenting positive behavior; using optimistic language; showing warmth, empathy, and openness; and criticizing the act but not the actor. Furthermore, providing the youth with a positive personal example is another important principle that can help maintain a trusting relationship. Next, the lawyer can act with a sense of hope and optimism toward the client’s future; not necessarily with regard to court outcomes, but a more broader faith in their ability to succeed and to overcome challenges. A close relationship, in turn, can be used to identify and foster the individual’s strengths and talents, to identify routes for enhancing motivation for change that is individually suitable for the client.

Read the full chapter:   Segev D. (2015) Positive Criminology and Therapeutic Jurisprudence: Relevant Techniques for Defense Lawyers. In: Ronel N and Segev D (eds) Positive Criminology. Routledge.