Guest blogger Jennifer A. Brobst, Assistant Professor at Southern Illinois University School of Law and 2017 Chair of the American Association of Law Schools, Balance in Legal Education Section writes… 

While successfully achieving many important gains, advocates of therapeutic jurisprudence (TJ) have long warned of certain risks of infusing psychology into legal processes.  TJ’s greatest gain in my mind is raising awareness of the very real social and mental health impact of legal systems on litigants.  As always, however, the attendant risks are greatest for the most vulnerable, which is why I focused on juvenile defendants in one of my recent articles: Miranda in Mental Health: Court Ordered Confessions and Therapeutic Injustice for Young Offenders, 40 Nova L. Rev. 1 (2016) (available on SSRN here).  I wrote:

There is a certain sadness accompanying the hopeful tone of the promotion of juvenile brain science to ameliorate harsh juvenile justice policies. For some offenders, the courts’ improved understanding of why youth express themselves with impulsivity and violence at times makes little, if any, difference on the legal outcomes of these juvenile offenders, and may even exacerbate the harsh remedies accorded them in the criminal justice system. The appeal of therapeutic justice, embracing both scientific advancement and compassion for the young, may be dangerously deceptive, leading to higher sentences and longer confinement in a system ill-equipped to manage the mental health needs of either young or old.

A natural tension arises in seeking a less punitive approach to criminal justice for those defendants in greatest need, such as the young, old, mentally ill, abused and addicted.  What may appear to be a compassionate approach, may result in the end in a betrayal of trust by the system.  Courts and counsel premise plea agreements on the acceptance of court ordered mental health treatment, but many defendants are never adequately informed by counsel that cooperation with treatment requires disclosure of past acts of offending behavior, potentially leading to additional charges.   As the US Supreme Court has acknowledged in Roper, Graham, Miller, and most recently in In re JDB, youth is a factor that biologically influences the ability to be coerced by the State.

Adding to the betrayal of coercion in treatment is that some treatment is not treatment at all, but “management”, such as that afforded to convicted sex offenders; while other forms of “treatment” are ill-designed, untested novel community programs.

As explained in greater detail in the article, our judiciary and legal counsel need to demonstrate much greater rigor and integrity when identifying evidence-based treatment programs for vulnerable defendants.

While I cannot bear to think that treatment programs in Departments of Juvenile Justice and Adult Correction are intentionally coercive, I also cannot ignore the fact that juvenile defense attorneys refused to work with me when I served as a Legal Director of a child centered, nationally renowned mental health center that would have gladly provided their clients with some of the best mental health services in the nation.   For over 10 years, these attorneys consistently cited the legal risks to their clients of disclosing past offending behavior.  They also acknowledged the need for their clients to receive our services as soon as it was legally safe.  As the article lays out, they were not wrong.  As prisons and juvenile justice centers remain the largest mental health provider in the United States, coercion through state sponsored mental health treatment is a risk we cannot ignore.

Increasing rights of confidentiality is not the answer. As a former prosecutor and crime victim rights advocate, I understand the State’s need to vigorously enforce lesser confidentiality for inmates and mandatory reporting among mental health clinicians.  Juveniles who offend most often commit violations against other vulnerable young people, and we know far too well that many youth are both victim and offender at some point in their lives. While we cannot ignore the disclosure of behaviors that would place other youth at imminent risk, we must do a better job of upholding the constitutional rights of juveniles who deserve fair warning before disclosure.  I believe this can be achieved through more effective counsel, Miranda warnings in treatment programs, and better protection against self-incrimination. It is only right and fair.

Do you have ideas to contribute on this topic? ….post a comment below…

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