The Therapeutic Application of the Law & the need for ‘Amicus Justitia’ Briefs

Therapeutic Jurisprudence founder David B. Wexler writes… 

Since I wrote my essay New Wine in New Bottles  where the legal landscape or code provisions were thought of as “bottles” and the developing TJ practices and techniques were thought of as the new “wine” or “liquid”, I have been thinking about how some new types of legal writing are in order.

The New Wine article spoke fancifully about the need to sketch a TJ “code” (scare quotes intentional) of proposed criminal processes and practices, where the hypothetically blackletter TJ-friendly provisions could be accompanied by a “commentary” section detailing how TJ practices could be poured into the code provisions.  A TJ-friendly provision, therefore, speaks only of the law’s potential to be applied therapeutically: to live up to its therapeutic potential, legal actors (judges, lawyers, others) need to use the types of TJ practices that the so-called friendly law would allow.

Two quick examples:

1. An ordinary provision allowing for the imposition of probation would seem to be TJ -friendly.  But a judge who unilaterally orders probation and its conditions would not be taking advantage of an available therapeutic opportunity.  On the other hand, consider a judge who begins the process by soliciting the offender’s input: asking the offender to personally justify a probationary sentence and the conditions the offender deems necessary and appropriate (eg, curfew, AA meetings, school attendance). According to the procedural justice literature, this latter procedure should increase offender compliance and sense of fair treatment.

2. In the US federal system, courts cannot be involved in plea discussions. But some states—such as Arizona—permit judicial mediation in Criminal Settlement Conferences, and would thus be considered to have significant TJ potential. Yet, in some instances, judges assigned as settlement judges may simply ask counsel if they have considered a settlement and if they would like to have some additional time to think about it. On the other hand, a judge like the late Michael Jones, a true leader in TJ, held robust, well-organized settlement conferences with counsel, the defendant, the victim, family members and friends of both. The statements made at the conference are inadmissible in court if matters breaks down, and that provision allows for apologies and the like. Mike Jones was taken at how often an apology began with a statement from the defendant’s family. In any event, judges like Judge Jones were legal actors who filled the settlement procedure with impressive TJ practices and techniques. (See: Wexler, D. & Jones, M, Employing last best offer and criminal settlement conferences)

Recent TJ literature sometimes speaks of the “bottles” as matters of Therapeutic Design of the Law (TDL) and the “wine” or practices and techniques as the Therapeutic Application of the Law (TAL).  What’s more, for TJ to thrive, TDL and TAL should be seen as interrelated, as a seamless methodology of assessment and reform.

In other words, we now have a coherent way of looking not only to the text of the law, but also to the therapeutic application of the law—and this living law is often neglected in law reform efforts.

To remedy this, I can even envision a new type of professional specializing in TAL. And in a recent keynote address in an international TJ conference in New Zealand, I noted that “a TAL specialist will need to concentrate on a somewhat different form of legal writing: bullets, suggested scripts, visual aids, crisply stated best practices—ways of conveying important material to busy legal actors willing to give the TJ way a good effort, but in need of an engaging and efficient way to get and stay up to speed.” (See: Wexler, D. Moving Forward on Mainsteaming of TJ)

The Amicus Justitia Brief Proposal

The new type of legal writing I propose here can incorporate the suggestions and concerns already listed.   Just as we have amicus curiae briefs to give input to appellate courts, we need a category of amicus justitia—friend of justice—briefs to orient and educate the legal actors capable of applying the law in a therapeutic manner.

Usually, this will involve courts, but the breadth of TJ suggests such briefs could have enormous value in other domains—with educators, employers, police officers, and many more.

These briefs could range from crisp blogs to longer articles or manuals. In addition to educating relevant audiences, such TAL briefs can help with the particularly challenging goal of sustainability. The law itself—being binding, published, readily accessible—does not ordinarily pose a sustainability issue. Not so, of course, with creative non-standard but permissible application of the law!

Let’s take a look at a few examples, going from the simplest to the important but unexpected:

• The probation and the criminal settlementexamples given earlier are TJ-friendly laws that can be given a big TAL boost through the publication of amicus justitia briefs indicating how TJ can profitably be infused in those stages.
• I published a blog on an expungement proceeding—TJ-friendly on its face—where expungement was the result but where the rapid pro forma proceeding fell far short of the therapeutic boost it could have provided. (See: Wexler, D. A Pro Formal Expungement Proceeding? A Lost Therapeutic Opportunity). Surely, lawyers and judges should be educated on the simple ways that TJ could, with minimal additional effort, be injected in such proceedings.
• A recently-enacted “therapeutic diversion” Puerto Rico Criminal Procedure Rule offers a diversion option to many persons charged with diverse offenses and found to have addiction problems. The eligible persons are evaluated and a Treatment Plan is then prepared by an interdisciplinary team and submitted to the court. Upon the eligible person’s acceptance of the plan, the diversion program will be set in motion. The language of the statute could be read to suggest the team will prepare the plan, and then present it to the defendant to accept or reject. That language could incline judges so to interpret the rule. But of course, nothing in the language says that the team must prepare with plan without the very active participation and feedback of the defendant. An amicus justitia brief could ensure that courts and treatment teams are aware of the important TJ/procedural justice literature on how the crucial role of “voice” leads to greater compliance and feelings of just treatment. Such a brief could result in a much more therapeutic–and successful—application of the new law.
• Perhaps the most important example of the need for a clarifying amicus justitia brief relates to the Hawai’I HOPE Probation program, especially in light of the excellent recent writings by Professor Lorana Bartels, an Australian legal scholar who visited Hawai’I, sat in on relevant judicial proceedings, and interviewed Judge Alm, the founder of the program.  The program looks like a strict deterrent approach, without a rehabilitative component. The program focuses on swift, certain, and proportionate consequences to misbehavior.  It begins with a “warning hearing” where new probationers are told of how they need to call in each weekday to see if they need to come in for a urine test. Failures are handled in a “sanction hearing”, where specified, but generally modest, responses are imposed. Probationers who do well for two years may be released early from probation, which ordinarily would continue for a couple more years.  The program has been very successful in Hawai’i, and has now been adopted by many other jurisdictions—in some of which the success rate has not matched that of Hawai’i.  The fascinating, surprising, and highly important finding of Bartels’ work is that, although HOPE in the law books looks like a pure deterrence approach, wiped clean of rehabilitative rhetoric, Bartels concluded from her observations that HOPE is largely a TJ program!  Her impressive work—a blog, a book, and more—details how Judge Alm acted with a heavy dose of TJ and procedural justice. For instance, his “warning hearings” are group hearings, done not only to conserve judicial resources but also to convey to the participants that they will all be treated the same—and that the judge wants each one of them to succeed.  There is much more here of course, but another interesting point is that, as noted above, if one does well in the program, candidates can terminate the program early – clearly a TJ-friendly design feature.  Here, an amicus justitia brief seems essential: without it, judges in other jurisdictions would never know of the TJ component—and the clear possibility that the TJ component may be responsible for HOPE’s success in its home state. So, a brief here will provide an educational/orientation function and, of course, will help sustainability.

Conclusion

So, where do we go from here?  I for one have given my students an assignment to review the new Puerto Rican Therapeutic Diversion Rule and in essence to prepare an amicus justitia brief, relating to judges, defense lawyers, prosecutors, and treatment personnel.  And my new research assistant, Karla Gonzalez, who has been heavily involved in pro bono TJ activities, has taken on this project as her major paper assignment. My outgoing excellent research assistant Myraida Melendez is helping with a power point presentation on this issue—in English and in Spanish.

This type of brief-writing should prove an excellent teaching tool for students, and should clearly orient them to a TJ component in their practice. Of course, professionals and academics in law, psychology, criminology and other fields could contribute mightily to this enterprise.

Often, longer papers will be called for here, depending of course on the particular statute receiving TAL attention. But many such attempts should be suitable for blog treatment. And I hope the Therapeutic Jurisprudence in the Mainstream Blog will be an appropriate outlet for many of them—either as a free-standing occasional series of Amicus Justitia or, perhaps, folded into the existing Court Craft Series.

A copy of this blog is available on SSRN here.