Justice as Therapy
POSTED BY Karen Bolstad0 Comments
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In 2006, we published Justice for Young Offenders: Their Needs, Our Responses by Mary E. Vandergoot. While the book deals with young offenders, obviously, her approach is applicable to adults with mental health issues as well. The following excerpt is from Chapter 11. In it Dr. Vandergoot addresses how courts can be used in a way that is more therapeutic than adversarial, recognizing the needs of offenders with mental health issues and the benefits to them, their families, and society in general of such an approach. Following this excerpt is an article from The Saskatoon StarPhoenix. Dr. Vandergoot was on to something.
Justice as Therapy
Can criminal law be therapeutic? It definitely affects people’s emotional and social lives, but could we imagine that it sometimes affects a person’s well-being in a positive manner? Can the law have a therapeutic effect on people who are subject to criminal sanctions?
The definition of “therapeutic” is telling. According to the Oxford English Dictionary, it means “contributing to the cure of disease” or “contributing to general, especially mental, well-being.” “Therapeutics,” in turn, can be defined as “the action of remedial agents.” Law is one remedial agent in our society. Health and education are two more.
The type of therapy envisioned is based on the idea that law can become therapeutic by incorporating the insights of the behavioural sciences. Therapeutic jurisprudence provides a philosophy of law that attempts to ally the behavioural sciences with legal processes and procedures:
This approach suggests that the law itself can function as a therapist. Legal rules, legal procedures, and the roles of legal actors, principally lawyers and judges, may be viewed as social forces that can produce therapeutic or anti-therapeutic consequences. The prescriptive focus of therapeutic jurisprudence is that, within important limits set by principles of justice, the law ought to be designed to serve more effectively as a therapeutic agent. . . . The therapeutic jurisprudence “lens” enables us to ask a series of questions regarding legal arrangements and therapeutic outcomes that likely would have gone unaddressed under other approaches. Therapeutic jurisprudence leads us to raise questions, the answers to which are empirical and normative. The key task is to determine how the law can use behavioural science information to improve therapeutic functioning without impinging upon concerns about justice.
The approach has applications in terms of guidance to the legal system at a philosophical level, but also at the individual case level, the court level, and the policy level. At the individual level, the judge may incorporate principles from the behavioural sciences into the legal process by requiring that sentenced persons acknowledge and describe their offences, using the principles of behavioural contracting, or engaging offenders in the process of problem-solving to encourage their adherence to the conditions of their probation. Like the “teachable” or “therapeutic” moment that can occur in educational and mental health interventions, therapeutic jurisprudence seizes on what have been dubbed “psychojudicial soft spots” — areas in which the judicial system’s unchecked actions could lead to negative consequences — when interacting with individuals in the court-room. At the court level, it may mean the development of special programs or specialized courts whose underlying legal theory is related to concepts from therapeutic jurisprudence, reflecting “a more responsive and involved judiciary.” Examples of these “therapeutic courts” would include mental health courts, drugs courts, and restorative justice programs, whose “intent is to reduce criminal behavior and recidivism by treating the illness that is causing illegal behaviour. . . . Mental health courts, by embracing the principles of therapeutic jurisprudence, become dual agents, representing both treatment and justice concerns.”
In The StarPhoenix on Nov. 18, 2013, Hannah Spray reported:
Court docket focuses on mental health issues
“If the criminal justice system has ended up, and in some ways it has, on the front lines of mental illness, this is really sort of saying, ‘Let’s recognize that’s the role we’re playing,’ ” said law Prof. Glen Luther, one of the people involved in developing the court’s new mental health strategy.
The first phase of the strategy involves a dedicated docket at Saskatoon provincial court, twice a month, for cases involving mental health issues. The court will use a therapeutic approach that focuses on support and supervision. A nurse who works in addictions and mental health services will be stationed in the courtroom, as well as a consistent judge, legal aid lawyer and Crown prosecutor.
Individuals will be referred to the court by a judge or on the recommendation of the Crown.
Saskatoon isn’t the first jurisdiction in Canada to take a run at mental health issues in the court system, Luther noted.
Manitoba, New Brunswick, British Columbia and Ontario, for example, already have mental health courts.
Judge Sheila Whelan said the idea for Saskatoon’s mental health strategy grew out of an education event held a year ago, spearheaded by the courts, that focused on fetal alcohol spectrum disorder (FASD). Whelan said the strategy is best described as a “long-term project” with the mental health docket as the first phase.
At this stage, the mental health strategy is working with existing resources, Whelan said. Partners include the court, the Ministry of Justice, Saskatoon Health Region, Legal Aid Saskatchewan and the Saskatchewan FASD Support Network, which will also have a representative at each of the court sittings.
“The approach we’ll take in court will be respecting the mental health conditions the best we can. This takes time, to learn new approaches,” Whelan said.
“We want to slow it down, change the tone, make the effort to be sure there’s understanding, not just superficial nodding agreement, discuss needs openly and come up with some problem-solving solutions.”
And of course, the goal is always protection of the public as well as protection and support of the individual, she said. The court will be primarily a sentencing court, for people who choose to plead guilty and consent to the assessments and supervision that may follow. It may involve delaying the actual sentencing and bringing people back for regular court appearances to monitor their progress.
There are many gaps in the provision of care to people with mental health issues, said Dr. Mansfield Mela, a forensic psychiatrist. When those individuals get into trouble with the law, they find themselves in “no man’s land,” he said.
“When you look at the mental health side, the people there will say, ‘Oh, he’s offending, so we can’t look after him.’ He goes to the legal side and the legal people say, ‘We don’t do mental illness.’ He goes to the group homes, they say, ‘This guy has a history of fire setting, so we won’t accept him.’ So you end up not having any one person to care for you,” Mela said.
Family members of offenders who participated in a study published in December 2012 also said there’s a need for a mental health court in the province, according to a report entitled Needs Assessment of Forensic Mental Health Programs and Services for Offenders in Saskatchewan, published by the Centre for Forensic Behavioural Science and Justice Studies at the University of Saskatchewan.
Almost all of the family members surveyed (98 per cent) “believed that such a court could help address the various addictions and psychiatric issues underlying the criminality of their family members or help to prevent a lifetime of addiction and mental health issues leading to criminality for other people, especially youth,” the report said.
Ideally, the strategy will bring together the resources needed to help the offender in the long term, Mela said.
“The benefit of that is not only to the offender, it is to the offender’s family, it is to the staff who work with him ... but more importantly, it is to the society, in that the cost of keeping him in the justice system is now reduced because he will have the support he needs.”