Restorative Justice and Therapeutic Jurisprudence in Forensic Cases – Perspectives of a Lawyer and a Psychologist

Professor Emeritus of Law New York Law School Michael Perlin and Psychologist Dr Valerie McClain explore whether Restorative Justice can be of value in criminal justice system in cases involving defendants with mental disabilities in a way that is consonant with Therapeutic Jurisprudence...

Restorative justice (RJ) is a means by which to restore victims, restore offenders, and restore communities in a way that all stakeholders can agree is just, via the values of participation, reparation, equality, a forward-looking approach, respect, and dignity. Although concepts of restorative justice have been steadily growing in the context of the criminal trial process since the mid-1980s, most growth has come in cases involving post-sentencing victim-offender interaction.  There has been virtually no movement to apply restorative justice principles to forensic cases. We believe it is time to consider that potential application, always with the use and inspiration of therapeutic jurisprudence (TJ) principles.

Professor John Braithwaite lists the objectives of a restorative justice approach as “restoring property loss, restoring injury, restoring a sense of security, restoring dignity, restoring a sense of empowerment, restoring deliberative democracy, restoring harmony based on a feeling that justice has been done, and restoring social support.” (1) Critical RJ values “include participation, reparation, community involvement, deliberation, flexibility of practice, equality, a forward-looking approach, victims’ involvement, and, “most important[ly],” respect. (2). At the core of restorative justice is a focus on the “restoration of human dignity.” (3)

Criminal justice rarely takes into account what might be driving an offender to commit the actions they do, and even when it is taken into account it merely serves as a defense against accountability of the offender. Examples include the extreme emotional disturbance and insanity defenses. Restorative justice recognizes the need to help the offender heal from any harm that might have “contributed to their offending behavior.” (4). In this area of the law, however, RJ interacts with the system mostly, though not exclusively, in cases involving post-sentencing victim-offender interaction. (5). Empirical studies show that it often increases “perceptions of fairness”; as is the case with procedural justice, offenders perceive restorative justice sessions as “more fair and more just” than the traditional criminal justice process. (6). By way of example, one study has showed that eighty percent of victims felt that the process and result was fair in restorative justice cases compared with the thirty-seven percent who went through the traditional criminal justice system. (7).

A question that should be of great concern to us is this: Is this restoration process even “on the table” in the criminal justice system in cases involving defendants with mental disabilities (or, in the context of the wider restorative justice movement, victims with mental disabilities)? Some preliminary work considers the amenability of defendants in mental health courts to restorative justice sessions, and scholars agree that restorative justice “recognizes that a criminal act has many consequences which are not addressed by the traditional model of criminal justice” (8), but, these insights have generally not been applied directly to cases involving incompetency, insanity or sentencing mitigation (the three most likely potential points of intersection for restorative justice and the cases of criminal defendants with mental disabilities, at least not in the United States (although there have been important developments in Canada, in New Zealand and in many other nations). (9). On the other hand, much of the “community justice model” — from drug courts and mental health courts to restorative justice and the new “sanctioning circles” — can be read as an attempt by the criminal justice system to respond to these challenges. (10).

Importantly, there is also some evidence that one value of restorative justice practices is to “avoid the detrimental mental health consequences victims experience as a result of their contact with the adversarial criminal justice system.” (11). Scholars have, in fact, written about the potential “zealous” advocacy role for a lawyer in advising her client about the pros and cons of participating in a restorative justice conference. (12)

But this does not necessarily consider the potential impacts on defendants in such cases. There is a real danger that the rights of those who are disempowered, excluded and vulnerable due to economic, social and racial inequalities may be at risk in restorative justice practices, and that “power imbalances” – “arising from differences such as race, class, culture, age and gender” (13) – in restorative justice programs also may pose a serious risk. A prominent criminologist, Tali Gal and a colleague, by way of example, acknowledge that the “extreme power imbalance” present in child abuse and domestic violence cases “presents a serious challenge to restorative justice,” but also note that restorative justice has also “empower[ed] young victims to speak up even in front of adults.” (14). Until such time as the criminal justice system takes these issues seriously – in the whole range of cases involving litigants with mental disabilities, we believe it is unlikely that we will ever truly create a system that comports authentically with dignity. For dignity is always at the core of TJ. As one of the authors has written, “I do not think we can seriously write about or think about TJ without taking seriously the role of dignity in the legal process.” (15). Restorative justice programs must be examined critically to ensure that this dignity remains present at all times.

What about the perspective of the expert witness? By way of example, forensic psychologists are in a unique position to advocate restorative justice (16). Daily contact with defense attorneys and judges, and programs within the judicial system provides opportunities to offer proactive education concerning mental disabilities and to develop strategies so as to, in accordance with the principles of therapeutic jurisprudence, alter the manner in which sentences are meted out. We believe that if a witness has both RJ and TJ values in mind when s/he does the evaluation, that may lead to a fuller and more contextual report.

Also, consider competency evaluations. During the course of the evaluation, mental disabilities including psychiatric disorders and intellectual or developmental disorders frequently go undetected unless the expert identifies and educates the referral source.  At this juncture, creative opportunities to promote restorative justice emerge.  For example, in cases in which intellectual disability is identified, a referral to an Agency for Persons with Disabilities can be made for specific supportive and rehabilitative services. In the short-term, efforts are targeted towards restoring competency.  In the long term, the goal is promoting actual community placement and improving quality of life including mental health intervention, vocational services and social interaction.  In cases in which the defendant cannot be restored, the expert can alert the audience as to the permanence and severity of the intellectual disability and comorbid disorders.  This allows a foundation for future planning and necessary supportive community services and paves the way for eventual community re-entry.

Consider further issues around insanity/defense of mental impairment , when forensic evaluators are similarly asked to evaluate defendants on the question of responsibility. If this evaluation is done fully –often including intellectual, neuropsychological and personality testing coupled with historical review of relevant medical, psychiatric and academic records — the risk of inadvertently punishing an individual who lacks a rational understanding of the criminal act will be decreased.

The use of restorative justice principles in cases involving these cohorts of defendants will also minimize the power of sanism (17) by combatting stigma (18).  “A major tenet of restorative justice is recognizing the humanity and dignity of all the participants.” (19). If restorative justice fulfills its mandate in a way that is compatible with TJ – that all individuals, including offenders “should be treated in a humane, egalitarian way that values their worth as human beings and respects their right to justice and dignity.(20)– then its application should be clear.

This is not to say that this is a problem-free zone. Think of some of the questions that may inevitably arise in such cases:

* How is the potential tension in cases involving sentencing in those jurisdictions (all federal districts and many states) in which mandatory or presumptive sentencing grids are to be used where a victim/offender RJ process is sought to be employed? Almost 20 years ago, it was suggested that in low-level cases, there should be included a presumption in favor of restorative-justice goals and processes (21), but it is not clear that this has gained any traction. Scholars have raised this issue in the past (22), but to the best of our knowledge, never from a TJ perspective (23).

* What are the implications of RJ in incompetency cases in which the prosecutor seeks a finding of competent in the case of a defendant who is authentically incompetent, a common set of facts? (24). This is a topic of great interest to TJ adherents (25), but again, the RJ movement has been silent on this topic; a simple WESTLAW search of  <<“restorative justice” /p “competency to stand trial” “incompetency to stand trial”> reveals no pertinent scholarship or case law.

* In insanity cases, has there been any consideration of whether the defendant is truly aware of the potential implications of an insanity verdict (including the likelihood that s/he will be incarcerated in a maximum security facility for longer than had s/he been found guilty of the crime) (26), and has the lawyer engaged in a meaningful dialogue with the client about the full range of potential outcomes of such a plea (27)? At least one RJ article has concluded – startlingly, to our minds – that there are “cogent reasons” why a defendant pleading insanity/defence of mental impairment should not be allowed to be involved in an RJ process (28). On the other hand, if RJ does –as Howard Zehr has argued — recognize the need to help offenders heal from any harms that might have “contributed to their offending behavior” (29), then there certainly should be a role for RJ to play in these cases.

In short, this is a complex (and largely-unexplored) issue. But we believe that adherence to the principles of therapeutic jurisprudence (on the part of both counsel and expert witnesses) will clarify — and optimally, resolve — some of the dilemmas we face.

We wish to thank David Wexler for encouraging us to focus on these questions.

We would love to hear from members of the TJ and RJ communities about the issues raised in this blog piece. Comment below or contact us – Professor Michael Perlin Email: michael.perlin@nyls.edu / Dr Valerie McClain vraemac@aol.com  

References

1. John Braithwaite, Restorative Justice: Assessing Optimistic and Pessimistic Accounts, 25 Crime & Just. 1, 6 (1999).
2. Tali Gal & Vered Shidlo-Hezroni, Restorative Justice as Therapeutic Jurisprudence: The Case of Child Victims, in Therapeutic Jurisprudence and Victim Participation in Justice: International Perspectives 139, 148-49 (Edna Erez et al. eds., 2011).
3. Mijha Butcher, Using Mediation to Remedy Civil Rights Violations When the Defendant is Not an Intentional Perpetrator: The Problems of Unconscious Disparate Treatment and Unjustified Disparate Impacts, 24 Hamline J. Pub. L. & Pol’y 225, 252 (2003).
4. Tina S. Ikpa, Balancing Restorative Justice Principles and Due Process Rights in Order to Reform the Criminal Justice System, 24 Wash. U. J.L. & Pol’y 301, 304 (2007).
5. Michael M. O’Hear, Is Restorative Justice Compatible with Sentencing Uniformity?, 89 Marq. L. Rev. 305 (2005).
6. Gal & Shidlo-Hezroni, supra, at 151.
7. Mark S. Umbreit, Robert B. Coates & Betty Vos. The Impact of Victim-Offender Mediation: Two Decades of Research, 65 Fed. Probation 29, 31 (Dec. 2001).
8. Michael Cobden & J. Ron Albers, Beyond the Squabble: Putting the Tenderloin Community Justice Center in Context, 7 Hastings Race & Poverty L. J. 53, 56 (2010).
9. Umbreit, Coates and Vos, supra.
10. Cobden & Albers, supra
11. Lorenn Walker & Rebecca Greening, Huikahi Restorative Circles: A Public Health Approach for Reentry Planning, 74 Fed. Probation 43, 44 (June 2010).
12. Ikpa, supra, at 324 n. 109.
13. See e.g., Michael L. Perlin, Power Imbalances in Therapeutic and Forensic Relationships, 9 Behav. Sci. & L. 111 (1991).
14. Gal & Shidlo-Hezroni, supra, at 154.
15. Michael L. Perlin, “Have You Seen Dignity?”: The Story of the Development of Therapeutic Jurisprudence, 27 U.N.Z. Law Rev. 1135, 1137 (2017).
16. Douglas Noll, Restorative Justice: Outlining a New Direction for Forensic Psychology, 3 J. Forens. Psychol. Prac. 5 (2003).
17. See e.g., Michael L. Perlin, On Sanism, 46 SMU L. Rev. 373 (1992).
18. See e.g., Jessica A. Focht-Perlberg, Two Sides of One Coin – Repairing the Harm and Reducing Recidivism, 31 Hamline J. Pub. L. & Pol’y 219 (2011); https://alert.psychnews.org/2020/08/brief-video-presentation-humanizing.html
19. Ric Simmons, Private Criminal Justice, 42 Wake Forest L. Rev. 911, 949 (2007).
20. Gerry Johnstone, Restorative Justice: Ideas, Values, Debates 11 (2002).
21. Robin L. Lubitz & Thomas W. Ross, National Institute of Justice, Sentencing Guidelines: Reflections on the Future 4-5 (2001).
22. Erik Luna & Barton Poulson, Restorative Justice in Federal Sentencing: An Unexpected Benefit of Booker?, 37 McGeorge L. Rev. 787 (2006).
23. For a TJ perspective on the Federal Sentencing Guidelines in general, see Michael L. Perlin, “I Expected It to Happen/I Knew He’d Lost Control”: The Impact of PTSD on Criminal Sentencing after the Promulgation of DSM-5, 2015 Utah L. Rev. 881.
24. See generally, Michael L. Perlin & Heather Ellis Cucolo, Mental Disability Law: Civil and Criminal (3d ed. 106) (2019 update), chapter 13.
25. See e.g., Michael L. Perlin & Alison J. Lynch, “My Brain Is So Wired”: Neuroimaging’s Role in Competency Cases Involving Persons with Mental Disabilities, 27 B.U. Pub. Int. L.J. 73 (2018).
26. See e.g., Michael L. Perlin, The Insanity Defense: Nine Myths That Will Not Go Away, in The Insanity Defense: Multidisciplinary Views on Its History, Trends, and Controversies 3 (Mark D. White ed. 2017).
27. Michael L. Perlin, “Too Stubborn to Ever Be Governed By Enforced Insanity”: Some Therapeutic Jurisprudence Dilemmas in the Representation of Criminal Defendants in Incompetency and Insanity Cases, 33 Int’l J. L. & Psychiatry 475 (2010).
28. See Jan Peter Dembinski, The Promise of Restorative Justice, 44 Vt. B.J. 34, 37 (2018).
29. Howard Zehr, The Little Book of Restorative Justice 17 (2002),