Therapeutic Jurisprudence as an anti-bias tool in courtrooms

In this blog, Professor Vicki Lens of the Silberman School of Social Work, The City University of New York, explores dependency courts and the intersection of race, gender and class and how TJ principles can be used to reduce bias in court rooms.  While Professor Lens’ work centres around dependency courts in the family law/child neglect/protection area, the ideas discussed have applicability in other specialist and mainstream court settings…

Dependency courts are social, as well as legal, spaces. They are places of status and hierarchy, where professionals reign over lay people, and where there are two camps: those there willingly (the professionals) and those who are not (the respondents or participants).  For the former, the courtroom is their work space, a familiar place with familiar faces. But for the latter, courtrooms are foreign territory, and often enemy territory, where friendly faces are few and far between and where judgment awaits.

Especially in dependency courts in the United States, the divide between the willing and the unwilling is often one of race and class. Black children are overrepresented in the child welfare system, and poor people are more likely than the affluent to be accused of child maltreatment. While Family Court judges are often women, they are also often White, as are many of the lawyers present in the court room. The courtroom is also divided by class, with mostly middle-class legal professionals standing in judgment of predominantly poor respondents.

As I observed in my ethnographic study of a dependency court, this demographic divide is readily apparent, and unsettling. Although at the center of the proceeding, the respondent parent, usually a woman and disproportionately of color, is virtually invisible. She often sits huddled and silent in her chair as the attorneys’ bustle around her, speaking for and about her.  Customary and routine rituals only reinforce this separateness. The swearing-in ritual distinguishes the parent from the other mostly White court actors, whose words appear to flow freely, without being subject to the test of truth. The protective gesture of an attorney silencing her when she speaks up unbidden also takes on a different hue when it is mostly white professionals silencing mostly poor women of color. A parent’s inclusion in the proceedings often only comes at the end, and then as a passive vessel of a judge’s orders, after others had discussed her transgressions and determined a solution.

The high volume and fast pace of cases also invites invisibility, as one case quickly blurs into another. A courtroom custom of referring to the parent as “the mother” when spoken about, and the generic “Ma’am” when spoken to, further erases respondents’ individuality and identity. As is common in such settings, judges will often rely on a type of “perceptual shorthand” or “scripts” to make decisions, based on a mix of the law and past experiences with similar cases, but which also may give short shrift to individual attributes and more room for institutional and systemic biases, including race, gender and class-based stereotypes.

Therapeutic Jurisprudence (TJ) with its focus on creating an inclusive, participatory and respectful legal environment, can transform such courtrooms. Its emphasis on the individual and how legal rules and procedures may affect respondents’ well-being is tailormade for countering group stereotypes.

Current approaches to addressing bias, including anti-racist training and reflection tools, already employ some of the principles of TJ. As one example, several courts have implemented the use of “Benchcards” for judges to monitor their own biases within the context of “best practices” in judicial decision-making.  The Benchcards include a series of “reflection questions” that are designed to encourage judges to view respondents as individuals, while also being aware of how group-based stereotypes may influence their decisions. Examples of reflection questions include:

• What assumptions have I made about the cultural identity, genders, and background of this family?
• What is my understanding of this family’s unique culture and circumstances?
• How is my decision specific to this child and this family?

Augmenting such approaches with a more systematic application of TJ principles acts as a further protective barrier against bias by encouraging judicial behaviors that ensure all parents are treated well and fairly. It also invites judges to consider the effect of judicial actions and behaviors on respondents, a key tenets of TJ.

As the table (below) illustrates the four dimensions of TJ – respect, neutrality and trust, voice and support – are also easily translated into concrete actions and behaviors that judges can incorporate into their repertoire

(1) For the full article from which this blog and table are drawn see Lens V. (2019). Judging the “other”: The intersection of race, gender and class in Family Court. Family Court Review 57 (1), 72-8.