Professor David B. Wexler writes…

As we enter the year 2018, it is exciting to look back over the last year to see the important therapeutic jurisprudence activities and developments in various locales across the globe—including Prague, where , in July, the International Society for Therapeutic Jurisprudence was launched; and meaningful conferences in which I was privileged to participate in Australia, Argentina, Japan, and, most recently, in Singapore.

Australia has long been a TJ leader (and held a major conference in April 2017), and we are now seeing other nations improving their justice systems via the use of a TJ perspective.

In Argentina, for example, in May, three meetings were held and a full-fledged chapter of the Iberoamerican Association of Therapeutic Jurisprudence was established.

In September, Japan held a well-attended conference, and boasted a Therapeutic Jurisprudence Institute at the Seijo University Law School (I blogged about the Japan conference soon thereafter).

And finally, on October 26 and 27, in its Supreme Court Auditorium, Singapore sponsored an excellent Sentencing Conference “Review, Rehabilitation, Reintegration.” This focus naturally provided an opening for a serious discussion of therapeutic jurisprudence and related perspectives (such as Non-adversarial Justice, an umbrella that includes TJ and closely related and overlapping perspectives, such as Restorative Justice and problem-solving or solution-focused courts).

Accordingly, after an impressive and substantive opening address by Chief Justice Sundarish Menon, the first full session, on “International Developments in Rehabilitative Sentencing and Practice”, featured Professor (and Dean Emeritus) Arie Frieberg of Monash University in Australia (and the originator of the Non-Adversarial Justice concept) and myself. And very significantly, in terms of the remainder of this Blog, the session was moderated with the active participation of Supreme Court of Singapore Judge of Appeal Steven Chong. Previously, Judge Chong served for some time as Attorney-General of the Republic of Singapore.

What especially animates me about my recent Singapore connection is the December 29, 2017 judgment of the High Court in the case of MA 9199 of 2017 Praveen so Krishnan v PP (final for release)—written by Judge Steven Chong. The case involved the appropriate sentence— whether reformative training or rather probation —for a youth who was 17 years old at the time of committing two drug offenses—one for consumption and the other for possession for purposes of trafficking.  The case takes a TJ approach and in fact speaks explicitly of therapeutic jurisprudence, even citing some of is literature (an article by three Australian coauthors).

The Case 

This Blog is not the appropriate place to get into the “weeds” of this case, though I must say that I was most impressed with the very quality of the obviously time-consuming work that went into the preparation of the opinion: meticulously careful, analytical, extensively researched, nuanced, and respectful (you may read the full case here)

The bottom line is that , after careful consideration of the factors relating to the purposes of sentencing (strong deterrence but, especially with youthful offenders, the presumptive primacy of rehabilitation), Judge Chong invalidated the reformative training sanction imposed by the district court and substituted a 36 month probationary sentence that included a 12 month residential stay at a hostel, which Judge Chong noted would still have a deterrent impact but would, unlike the reformative training option, allow the youth to complete his education.

The Specific Therapeutic Jurisprudence Language and Nuanced Analysis

In Paragraph 69, Judge Chong notes:

One important facet of the court’s duty is to choose the sentencing option that is most likely to achieve the objective of helping the offender become a good and productive citizen. This is broadly in line with the growing attention to the notion of “therapeutic jurisprudence” within juvenile justice settings, which sees judges as being key players in applying the law in a way that has “therapeutic” or beneficial consequences for the behaviour of the young offender: see, eg, Kelly Richards, Lorana Bartels & Jane Bolitho, “Children’s Court Magistrates’ Views of Restorative Justice and Therapeutic Jurisprudence Measures for Young Offenders” (2017) 17(1) Youth Justice 22 (at p25). 

While the above language is helpful in explicitly supporting a therapeutic jurisprudence approach, an earlier portion of the opinion demonstrates to me the careful and nuanced TJ thinking that enabled Judge Chong to reach his conclusion that probation with a period of hostel residence would be protective of the public and yet be the preferred rehabilitative option. I will use bold print to emphasize language I will return to later on:

In Paragraph 35, Judge Chong notes:

I should add that I am cognizant of the observations of Sundarash Menon CJ in Boaz Koh (at[64]) that the court should not ordinarily subvert the statutory scheme of institutional confinement devised by the state (ie, reformative training ) by creating alternative schemes that impose terms of probation conditioned on residence in private homes. In particular, offenders should not be placed in a position where he would be able to pick and choose the terms on which he would like to be rehabilitated. I do not disagree with this statement of general principle. But at the end of the day, the sentence to be imposed depends on the precise facts and circumstances of each case. As was highlighted in Justin Heng at [26], there must be room in the exercise of sentencing discretion for a more nuanced or “textured and measured” approach based on the potential of the offender to be amenable to reform. I do not consider that Menon CJ’s remarks in Boaz Koh were intended to impinge on the discretion of the court to make a probation order conditional upon the offender’s residence in an approved institution. This can be done if the court, having regard to the circumstances of the case, considers such an order necessary for securing the good conduct of the offender or for preventing his commission of the same offence or other offences: see s 5(3)(a) of the POA.

To me, this concurrence in general with the Chief Justice’s approach, but distinguishing it from the current situation, is good legal analysis and an excellent opening for a TJ approach.  Of course , it is the court that ultimately imposes a sentence and the conditions of probation. Of course, the offender cannot pick and choose the sentence and the terms of probation. But no where is it written that a court must impose a sentence or conditions of probation without first ascertaining what the offender (and counsel) has to say about the proposed sentence.  TJ approach invites us to see whether the law can be made or applied in a more therapeutic way so long as other values, such as justice and due process, can be fully respected.

Indeed, the importance of giving “voice” to the person about to be sentenced, listening carefully to what the person has to say, and treating the person with respect are foundations of therapeutic jurisprudence, contributing to offender compliance with imposed conditions, and to offender perception of fair treatment.  Having “voice” also helps build the motivation necessary for an offender to embark upon and sustain the behavioural change necessary for rehabilitation.  In fact, judicial/offender dialogue and discussion is an important and fast-growing dimension of TJ and the therapeutic application of the law.

This impressive opinion deserves to be assigned reading in law school sentencing/TJ courses and in judicial colleges.

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