Monday, September 27, 2010

Ecology of Human Development - an Invaluable Approach to Family Justice

By Lesley Kamenshine

The ecology of human development that we have learned about in class is most exciting. The concept was first applied to the legal system – specifically family law - by Prof. Barbara Babb, Director of the Center for Family, Children and the Courts, in her groundbreaking blueprint for unified family courts.1

Developed by psychologist Dr. Urie Bronfenbrenner2 who founded Headstart, the ecology of human development seeks to understand how the complex interrelationships people develop in different settings affect individuals' lives. How do parents and children function with each other, with and within the school, the community – and even the culture? How much impact does a parent’s employer have on a child? These are examples of questions an ecological approach seeks to answer.

As applied to the legal system, Prof. Babb has provided a systematic way for judges, attorneys for litigants, and the parties themselves to explore - separately or together - the connections and relationships between various facets of a person’s life. The ecology of human development makes a person more three-dimensional. A case is no longer just about a plaintiff's claim or a juvenile delinquent’s record. Through the ecology of human development approach that Prof. Babb has fostered in her work with unified family courts, a legal actor now has the informal legal blessing to explore connections with other facets of a person's life - relationship to the job, the community, school, etc.

While legal actors often do explore such relationships, incorporating the ecology of human development into unified family courts ensures that such relationship exploration is not just random or implicit, but becomes part of the problem-solving process. This would appear to make the legal actor's investigation, interview and/or interrogation more thorough, and provide more opportunities for problem resolution.
1. Barbara Babb, “Fashioning an Interdisciplinary Framework for Court Reform in Family Law: A Blueprint to Construct a Unified Family Court,” 71 S. Cal. L. Rev. 469, 507-508. Content defining the ecology of human development (paragraph 1, above) comes primarily from p. 507.
2. Id., n. 31, Urie Bronfenbrenner, The Ecology of Human Development (1979).

Tuesday, September 21, 2010

The Relationship between Truancy Court and Law Enforcement

Like another CFCC Student Fellow, I also come to the CFCC Student Fellows Program with a perspective largely from law enforcement. The area of the law that has interested me the most has been criminal law (with family law a close second). Most of my internships/clerkships have been in the criminal area of the law. At first glance, it may seem as though the concepts of therapeutic jurisprudence and preventative law would be at odds with a pro-law enforcement viewpoint.

While interning in various offices dealing with criminal law, it is not uncommon to accompany attorneys to court. While observing, it is hard not to notice an alarming trend when criminal defendants are accepting a plea. The defendants are subjected to many questions that help the judge determine whether or not the defendant is fit to take a plea, understands the consequences, etc. One of the questions a judge asks to assess a defendant's capacity is "what is the highest level of education you have completed?" Quite often, the responses fall short of "twelfth." Therein lies my interest in the Truancy Court Program and the concepts of therapeutic jurisprudence and preventative law.

Just yesterday I attended the Truancy Court Program orientation at the school I will be assigned to for the next 10 weeks. While the children ranged in age from lower elementary students to middle school students, all brought their own personality and it was clear within minutes. These children, who are often identified as at risk of becoming truant, show that they are often intelligent and/or talented in a variety of ways. The problems behind their school attendance are not necessarily a competency issue, lack of interest, or willingness to break attendance laws. Some truancy issues are addressed by simply giving the child an alarm clock, setting goals for them, etc.

The issues in society and their underlying causes that are most vexing should not be ignored. Especially at such an early age when data supports the proposition that high school dropouts are more likely to engage in illegal behavior. It seems rather inappropriate, and counterproductive, to punish a child who may want to be in school but can't the same way as a child who flagrantly breaks the rules. All too often, problems such as these are compounded and/or reinforced by systemic flaws. Therapeutic jurisprudence, rightly, recognizes that applying a one size fits all approach may ultimately backfire not only on the rehabilitation of the individual, but on society as well. In fact, one study found that just one high school dropout costs the public more than $200,000 in social programs and criminal justice expenses over the course of the dropout's lifetime.1

For a more local example, it cost Maryland taxpayers an average of $38,654 to house an inmate in the Department of Corrections just this past year. This figure, which is 26% higher than the national average, does not even include social programs, court costs, or other expenses. It is not unreasonable to think how things could have been different for school children left behind in the years before the concept of therapeutic jurisprudence, preventative law, and the Truancy Court Program. Maybe more children would have succeeded in school if there had been someone to reach out to them and give the child an item as simple as an alarm clock.

Personally, I look forward to the weeks ahead in the CFCC Student Fellows Program. I would expect that some of my fellow bloggers may share some of their experiences as well. After learning about therapeutic jurisprudence and preventative law, it will be a fantastic opportunity to see the concepts take hold in meaningful 'real world' applications.

1.Colorado Foundation for Families and Children, “Youth Out of School: Linking Absence to Delinquency,” September 2002.

Tuesday, September 7, 2010

A Student’s First Impression of Therapeutic Justice

Therapeutic Justice (“TJ”), a novel concept to myself and probably most law students, is the brain child of Professors Bruce Winick and David Wexler that posits that, “other things being equal, positive therapeutic effects are desirable and should generally be a proper aim of law, and that antitherapeutic effects are undesirable and should be avoided or minimized.”1 Additionally, in describing TJ’s role in law, its founders maintain that it is simply a factor to consider along with all of the other meaningful goals our justice system intends to purport.

Upon reading and then discussing this approach to the legal field I could not help but think of TJ as an overly obvious goal that would meet a minimal amount of opposition. However, upon further reflection, the key questions that I seemingly cannot answer are what role, and how much influence, should TJ have in our justice system? Granted, as mentioned above, TJ is claimed to be only a factor to consider, yet this answer seems far too amorphous for an approach that, depending upon the answers to those two questions, could have modest or significant ramifications on how law is practiced everyday.

It seems apparent to me that there are two major ways that TJ can affect our legal system. First, it can affect how laws are made and perhaps more importantly how they are applied in various jurisdictions. In this respect, the questions posed in the previous paragraph need to be answered to determine how strong of a factor our society wishes TJ to play in conjunction with other goals of our justice system. Second, TJ can affect how judicial officials interact with individuals who are thrust into the system for various reasons. This naturally poses its own problems, as it is more determinative on every judicial officer to act and communicate in a fashion that is socially beneficial to clients, plaintiffs, defendants, etc., who, in turn, are all very different. Perhaps TJ’s strongest impact will be made by those who promote this philosophy by bringing it to the awareness of all of the various court actors and hoping that they will act and communicate, consciously or unconsciously, accordingly.

In conclusion, though TJ seemingly raises more questions than it answers, it still is the noble, overly obvious goal that should at the very least be considered in the legal profession. How much consideration? One has to hope that over time TJ will find its proper role.

1. Bruce J. Winick, The Jurisprudence of Therapeutic Jurisprudence, in LAW IN A THERAPEUTIC KEY: DEVELOPMENTS IN THERAPEUTIC JURISPRUDENCE 649 (David B. Wexler & Bruce J. Winick eds., 1997).

Saturday, September 4, 2010

Meshing Therapeutic Jurisprudence and Law Enforcement

Hello CFCC Bloggers. I am currently a CFCC Fellow at UB School of Law. I was posed an intriguing question last week in class that I have been thinking about throughout the weekend. Last week’s class discussion was about Therapeutic Jurisprudence (TJ) and Preventive Law. At the end of class, I was asked my opinion on TJ. My answer was the following: I believe that TJ is a great concept that should certainly be “applied” (for lack of a better term) by every attorney practicing law. I followed that with my reasoning.

Now, one would think, “Well that’s not a very peculiar answer.” I did not think so either, UNTIL after class when one of my fellow classmates told me that she was interested to hear my response considering what I want to do for a living. I was very thankful for this thought-provoking question. After thinking about it throughout the week and weekend, I got the idea to write this blog to explain my position of why it is that an aspiring FBI Agent would believe in Therapeutic Jurisprudence. My hope is that the “take-away” from my blog will be that even a person on the law enforcement side believes in TJ. Thus, Mr. Winick and Mr. Wexler’s idea has even persuaded those individuals who work to capture criminals.

I guess that most people think that someone who wants to spend the rest of their life arresting suspects for the awful crimes they commit would not believe there is justice in therapy. YES, I want to arrest criminals and YES, I do believe in punishment. However, just because I want to bust them and cuff them does not mean that I want them to serve significant amounts of time in our over-crowded prisons. I do believe in jail terms, but I also believe in therapy and rehabilitation and see it being successful for some, not all, criminals. In my opinion, a defendant who walks into a courtroom and is convicted of a drug charge, should be sent through rehabilitation. Depending on the severity of the drug charge and if there was violence or other crimes involved, maybe rehabilitation and a jail sentence are both beneficial.

My point is that as an FBI Agent I can only plan to do my job bringing suspects into the legal system. My hope then is that the attorneys and judges that they come before, will apply TJ so that the next time that individual crosses my path, I do not have to put handcuffs on them. Rather, I can devote my time to another criminal and I can smile confidently and thank the justice system and therapeutic jurisprudence for a successful rehabilitation.

I applaud and thank the CFCC professors, Mr. Winick, and Mr. Wexler for making me, who once thought that prison was the only therapy, believe that there are other ways in which our law can be therapeutic.