Professor David Wexler writes…
I recently learned of a very pro forma—but successful—felony expungement proceeding, a proceeding that puts into sharp focus the difference between the Therapeutic Design of the Law (TDL) and the Therapeutic Application of the Law (TAL).
The Petitioner, with a many year old felony drug conviction and otherwise lawful behavior, hired a lawyer to represent him in a proceeding to eliminate the conviction from his record. Local law permitted the elimination after the required waiting period, a process that requires a hearing if the court or prosecutor requests one. It seems that, in these cases, a hearing is generally held, although, as in this case, the prosecutor often does not object to the cleansing of the record.
Here is how the whole process played out:
The petitioner was asked by the lawyer to secure two or three witnesses to his good character—to his “good reputation in the community”. He easily recruited a few friends and took their basic information (age, civil status etc) and forwarded this information to his lawyer. In the case of one witness, in addition to providing the very basic requested information, the witness noted that he had seen the petitioner in a work environment, supervising youths in recreational activities, and that the petitioner had performed with high competence and responsibility.
The lawyer didn’t personally interview the witnesses, and prepared the required affidavits in a bare-bones manner, not including, for example, the comment by the one witness who volunteered information about the petitioner’s work behavior.
A hearing was ultimately held, at which time the three witnesses appeared in court. Then and there, the prosecutor, while waiting for the judge to enter the courtroom, asked each prospective witness two questions:” how long have you known the petitioner?”, and “what is his reputation in the community?”
The judge entered the courtroom, called the case, and the petitioner and three witnesses stood and came forward. The petitioner’s lawyer moved for the expungement, the prosecutor said he had no objection, the judge asked the petitioner how he was doing, and then ruled the conviction expunged. Petitioner, witnesses, and a few relatives and friends left the courtroom. The petitioner was pleased that this was behind him, thanked the lawyer, witnesses , friends and family, and that was that.
So what are we to make of all this?
First, the expungement law is one that is TJ-friendly: it is a well-designed law. Given the result and the satisfaction of the petitioner, should we in the TJ community ask/hope for more?
Surely, more could have been done by lawyer, prosecutor, and judge, and could have led to a much more robust therapeutic application of the law—of course with the identical result of expungement.
- The lawyer could have interviewed the witnesses, probed them for positive details, and could have prepared impressive factual affidavits
- These affidavits would have alerted the prosecutor to the facts underlying the petitioner’s good reputation in the community, making even more likely the prosecutor’s non-objection to the petition.
- The lawyer, in asking for the expungement, could have emphasized these facts, commending the petitioner for his behavior and his demonstrated strengths.
- The prosecutor, having no objection to the expungement, could also have emphasized the favorable facts and could in fact have joined in the motion to expunge.
- The judge could have reiterated all this, congratulating the petitioner, giving a shout out to the family and friends, and wishing the petitioner well for the future.
So the question becomes: was this minimal therapeutic application of the law a missed opportunity? Or would a proposal to expend the extra effort yield pushback as an unnecessary waste of time in an overloaded court system? I think the question is well worth asking and discussing.
I’m sure there are some in the managerial “efficiency above all” camp that will be in the pushback group. So permit me to make the case that a robust therapeutic application of the law can serve many important purposes.
TJ is an approach that invites legal actors to look beyond the law to other disciplines to determine what would improve the wellbeing of people coming in contact with the law. In the case of the expungement hearing, we could of course draw on psychology but also on criminological theory of desistance (that is the study of how people desist from or stop offending). In the desistance theory it is said that the pathways to desistance are through repaired relationships with community and the state and not just through ‘correction’ of the individual. The expungement process is key to repairing the relationship with the state. Desistance also is said to require a shift in identify from a pro-criminal identity to the pro-social identity. The expungement hearing could therefore be a means of not only acknowledging this shift but of cementing it, providing encouragement to continue with this new identity into the future.
And consider also what we might call “secondary” or “vicarious” therapeutic effects:
- If expungement hearings were to be held at the start of a busy court room where current offenders are present, those hearings may serve as a beacon for offenders to see how they too could make the shift; and
- Witnessing the process may also serve as a psychological boost to lawyers, prosecutors and judges— who may otherwise be ground down by the recidivism they see in their busy criminal lists– to be reminded that rehabilitation can and does happen, and that the therapeutic application of the law can be inspiring and sustaining.
This blog is also available via SSRN
Have something to contribute to this discussion? Post a comment below.
The ISTJ Blog 
I think David Wexler’s thoughts on this topic are both fascinating and important, but, in thinking about them, I am left with a sense of frustration at my realization that this simply couldn’t/wouldn’t take place in many jurisdictions.
`1. In some states, there is no general expungement statute at all. By way of example, in New York, CPL § 440.10 (criminal code) allows for expungement in cases of loitering or prostitution, but those are clearly solely for victims of sex trafficking. There is some case law about expunging convictions in stock broker cases, but nothing at all in street crimes. So 98%+ of all defendants would never have this chance.
2. “Expungement” is a deceptive term. Though the defendant’s state court conviction may be expunged, any criminal defense lawyer will tell us (sadly) that this word does not trickle down to local police or up to NSA/homeland security-type agencies, and the individual is still treated like a felon, regardless of the fact that there was a state Superior Court expungement order entered. So, this is the reality on the street.
3. I have no faith that most.many/more than a handful of prosecutors would think this is a good thing. I was told the other day about a criminal case in which the charge was dismissed and the prosecutor’s reponse was, “Judge, think about all the other crimes he probably committed that he was never charged with.” The judge ignored the prosecutor, but, in my 13 years as a litigator and my subsequent 30 years as a professor of criminal law and procedure, this is certainly the reaction (by the prosecutor) I would come to expect.
4. David is absolutely right that “The judge could have reiterated all this, congratulating the petitioner, giving a shout out to the family and friends, and wishing the petitioner well for the future.” And that would have been wonderful. I have seen this happen, but only in problem-solving courts (that is not to say that it wouldn’t happen elsewhere, but I think it is in credibly rare). Judges in “regular” criminal courts have one main focus – move the case quickly. “Efficiency” is the one operative value (even if that “efficiency” leads to a situation where recidivism is much more likely (with not simply social costs, but long-term judicial time costs) Anything that gets in the way of “speedy resolution”becomes an irrelevant waste of judicial time. Alas.
Don’t get me wrong. I think David’s arguments are absolutely on the money. I just see virtually no prosecutors and just a minimal number of judges endorsing it. And that makes me very sad.
LikeLike
Great addition to the discussion Michael.
I agree it is a challenge to change judicial practices but I think there are many judicial officers around the world who want to hear about ideas about how to be effective in court.
I and many other colleagues in Australia are keen to employ these types of practices if they improve the quality and effectiveness of what we do in mainstream/traditional proceedings.
In overworked high volume courts efficiency is important. Two thoughts though, TJ practices like the ones described by David Wexler are not at odds with efficiency. They often only require a slight shift in how you say or do something, they don’t necessarily mean the case will take much longer. I regularly deal with daily court lists of about 100 people, my day is full of TJ practice and I get through the list.
The quality of justice does not simply mean efficiency there needs to be a balance between efficiency and effectiveness. I am firmly of the belief that this is possible.
Our issue in Victoria Australia is that we do not have an expungement law. So the design of he law is not “Tj friendly”.
Cheers
Pauline
LikeLiked by 1 person
Pauline, I agree completely, but I have simply never seen this happen in the US outside of a problem-solving court (and I have been in trial courts in well over half the states, and in multiple other nations as well). I know many judges who have told me that there is intense pressure on them never to write an opinion in a case b/c, during the time it would take, they could “dispose of” (I never, til this moment, thought of the significance of the omnipresent use of the phrase “dispose of” to refer to cases involving peoples’ lives and futures) many more cases.. The administrative director of the courts in each jurisdiction that I know has a list of how long each case has has been assigned to each judge, and judges get memos asking why the long-time cases haven’t been “moved.” “move the case” is the mantra. The efficiency is a false efficiency, but it dominates the court system — again, putting aside *some* (not all!) problem solving courts — everywhere I have been.
A TJ colleague — not from the US –and I are about to start work on the false consciousness of the “efficiency” vs “justice” dichotomy, and we should have something ready to go on this by the spring.
Again, note my earlier posts (this spring and 2015) in which I write with such amazed pleasure at the way that judges in Australia and New Zealand deal with these issues. A totally totally different world than the US.
LikeLiked by 1 person
Further to my comment about Victoria Australia’s lack of expungement law being not ‘TJ friendly’, there is some work being done by Victorian nonprofits and academics to put this issue on the agenda: https://gallery.mailchimp.com/66c3dea78c4c6fc751e752974/files/5367782b-16f3-422d-9b2f-e96b58746ae5/CRDP_Aboriginal_Justice_Forum_27_Oct_2017_press_release_5_.pdf
LikeLike