Therapeutic jurisprudence (TJ) is a lens through which we can improve the effectiveness of criminal justice systems. TJ invites us to ask – Can we redesign the law itself, can we apply the law in different ways that will improve the wellbeing of people involved in it?
Plea bargaining, settlement conferences and other processes that seek to resolve criminal proceedings before trial are entrenched in many legal systems throughout the world.
Are there ways that these criminal settlement processes can be used to enhance psychological wellbeing of accused and complainants, improve accused person’s willingness to engage in substance abuse or mental health recovery activities and improve the chances of future compliance with the law?
In a recent article “Plea Bargaining as Dialogue” (Akron Law Review: Vol. 49: Iss. 1, Article 2), Rinat Kitai-Sangero explores this question. In this article we are reminded of Meursault, the protagonist of Albert Camus’ famous novella, The Stranger (or The Outsider) a defendant who is excluded from his criminal justice process. The article provides that:
The criminal justice process should not only give defendants fair treatment, but it should also make them feel that they received fair treatment. Treating defendants with respect has a therapeutic effect: defendants are willing more readily to accept responsibility for their behavior and even to modify it. Research shows that meaningful participation by the accused person in the criminal justice process dramatically increases that individual’s sense of fair treatment independently of the final outcome of the trial. The feeling that one’s voice was heard—that there was the opportunity to present arguments and be listened to—bears heavily on a defendant’s evaluation of the proceedings. There is a connection between a sense of fair treatment, including having one’s views considered, and the sense of control on the final decision. In assessing the fairness of the process, accused persons give weight both to respect for their rights and to respect for them as human beings. The message then conveyed is that one is a member of the community.
The article then proposes a process through which there would be meaningful dialogue between the defence and a prosecution. In this dialogue:
…a prosecutor, who is not in charge of conducting the trial against the defendant, would communicate the attitude of the prosecution regarding the seriousness of the offence, the harm caused to the victim and to society at large, and the prosecution’s initial position on the appropriate sentence. The defendant would then have the opportunity to present reasons for committing the offence, any remorse, and any feelings regarding the victim. In addition, the defendant can maintain innocence, assert that the offence committed or the degree of his culpability is less serious than that of the charge, or point to any mitigating circumstances.
This new article reminds me of previous work by Professor David Wexler and Judge Mike Jones who wrote about the therapeutic potential of criminal settlement conferences in their article Employing the ‘Last Best Offer’ Approach in Criminal Settlement Conferences: The Therapeutic Application of an Arbitration Technique in Judicial Mediation This essay explored how the criminal settlement conference procedure could be improved by infusing it with judicial practices and techniques of therapeutic jurisprudence (TJ). Here, the essay goes a step beyond and proposes, with the full consent of the participants, the therapeutic use of an arbitration technique — the “last best offer” (LBO) approach — to motivate the parties (defendant, victim, and state) better to see and appreciate all the positions involved — and to increase the chances of an agreed-upon settlement. The essay closes with a recommendation that other jurisdictions consider the adoption of the legal structure permitting such conferences and that such conferences be implemented with a robust use of therapeutic techniques, including the LBO approach.
Given the widespread use of various types of settlement processes in our criminal justice systems there is certainly scope for defence lawyers, prosecutors and judges to shift from “business as usual”.
The question is simple: In your system, what could be done to improve the emotional and psychological wellbeing of accused and complainants involved in criminal settlement processes? Therapeutic jurisprudence thinking invites us to look at the:
- Design of the law (Therapeutic Design of the Law); and
- Application of the law (Therapeutic Application of the Law) (the processes involved in the application of the law and the roles of the various legal actors).
In your system would be laws need to be changed to enable a more therapeutic approach to criminal settlement processes? Or is it a matter of simply changing the processes (e.g. to give the accused an opportunity to have their voice heard) or the way that particular legal actors – prosecutors, defence lawyers or judges) carry out their roles?