Criminal Law

Reduce recidivism, justice system costs with therapeutic jurisprudence

By AdvocateDaily.com Staff

In the second instalment of a four-part series, Oshawa criminal lawyer Lawrence Forstner examines the concept of therapeutic jurisprudence.

Adopting practices to positively improve the psychological well-being of offenders could save the criminal justice system a great deal of money, Oshawa criminal lawyer Lawrence Forstner tells AdvocateDaily.com.

“When judicial officers and other court participants better understand the research on change management, they begin to acknowledge that their words, actions, messages, attitudes, and delivery styles have either therapeutic or anti-therapeutic effects on an accused’s progress towards change," says Forstner, principal of Forstner Law. "The more therapeutic the effect on the change process, the greater the reduction in recidivism and overall costs to the system.”

The concept, which emphasizes the healing potential of the law, and an ‘ethic of care,’ by dividing interactions into those with therapeutic or anti-therapeutic effects, has the power to transform the courtroom experience for both accused persons and courtroom participants, he says.

“When they ‘see the light,' advocates and jurists are viscerally experiencing the change process themselves, so that when they adopt approaches that research shows are psychologically conducive to beneficial change, they can better mirror their understanding of change to offenders. In turn, this creates positive reinforcement for all about the efficacy of their efforts," Forstner says.

“If we could affect recidivism rates even by one or two percentage points, we would see huge savings in the costs to the correctional system alone but there would be enormous other savings and benefits throughout society.”

Therapeutic jurisprudence (TJ) first appeared in the research of mental health and disability law professors David Wexler and Bruce Winick in the late 1980s, he says.

To the extent that TJ practices are recognized here, Forstner says it is Ontario’s “problem solving” courts, such as those devoted to mental health cases, that lead the way.

For example, the Toronto Drug Treatment Court has been helping people with addictions avoid jail for offences related to their dependencies since 1998. Under the voluntary program, adults facing non-violent charges such as minor property charges, drug possession, or non-commercial trafficking, receive non-custodial sentences in return for participation in a community-based approach focused on supervised harm reduction treatment, abstinence support, housing, and counselling.

But Forstner sees no reason why TJ should be confined to these special courts.

“Specialty courts employ restorative justice (RJ) practices, but they are conducted through the lens of therapeutic jurisprudence. Courts need not use the same — or any — RJ practices to conduct proceedings in a TJ manner.”

He says that the concept is a little hard to grasp, but, “a good way of understanding the difference is to think of RJ engaging the ‘what’ of court practices, while TJ focuses on the ‘how.’ The ultimate goals of RJ and TJ are many, but both recognize the value of engaging the psychological realities of the change process."

The main purposes of sentencing are denunciation, deterrence and rehabilitation, Forstner says. But in mainstream criminal courts, "we tend to get stuck thinking that deterrence means jail, and rehabilitation means 'hug a thug.’

"I advocate an understanding of deterrence as whatever actually works to deter and reduce crime. Every court should view its process through a TJ lens, so that we can do justice in line with the statistically proven research.”

Forstner tries to bring this principle into the sentencing of his own clients by expanding on the person’s life story beyond a rap sheet.

“Any defence lawyer can find out about a person’s history in the correctional system, in terms of therapy and counselling, if they’re prepared to do a little digging. That way, you might find that you can invite the judge to look at them not just as a person who has failed time after time, but as someone who has tried in some ways to improve themselves,” he says.

“If you can get the judge to see the person as more than the crime they’ve been found guilty of, and invite the court to view the case through the TJ lens — looking at the person’s struggles and successes, as well as how the criminal justice system has interacted with them — we may be able to help fashion and deliver sentences that actually support the change process.”

Even if a hefty custodial sentence is called for, Forstner says a judge’s delivery can set the tone for the next phase of the person's life.

“When a guy is used to doing time and gets six months after being told off by a judge, he spends most of the time fuming and awash in humiliation,” he says. “But if the judge looks through his or her TJ glasses and engages with the client on a human level, using an in-depth knowledge of the change process, he or she will be taking an approach that allows the individual to better understand their sentence and the areas they need to work on.

"This is how recidivism is reduced. You may still think it’s a highfalutin way of disguising ‘hug a thug’ approaches, but you will take the huge reduction in costs it can produce, won’t you?”

Stay tuned for the remainder of the series, which includes a closer examination of therapeutic jurisprudence practices in other countries, and roadblocks that remain to its widespread adoption in Canada’s criminal justice system. For part one, click here.

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