What is Therapeutic Jurisprudence (TJ)?

I founded the Sayra and Neil Meyerhoff Center for Families, Children and the Courts (CFCC) in August, 2000, with Therapeutic Jurisprudence (TJ) as one of its two underlying theoretical constructs. Indeed, TJ informs and frames all of CFCC’s work. Many academics have heard of TJ, and the legal and judicial communities are becoming increasingly familiar with its meaning and implications for the practice of law. Nonetheless, there are some misconceptions surrounding TJ and its application. For example, one popular misconception is that TJ calls for judges and lawyers to be experts in psychology or social work.

Professor David Wexler, one of the two co-founders of TJ, and I recently published an article in the Encyclopedia of Criminology and Criminal Justice that helps to explain the evolution of TJ, its meaning, and its impact on the law across a wide range of practice areas.

Therapeutic jurisprudence is a field of inquiry that “focuses on the law's impact on an individual's emotional and psychological well-being.” Professor Wexler and I explain:

“TJ looks at the law as a social force that can produce therapeutic (helpful) or antitherapeutic (harmful) consequences. These consequences flow from substantive law, legal rules, and legal procedures (the "legal landscape") and from the behavior (the "practices and techniques") of legal actors, including lawyers, judges, court personnel, and others working within a legal context… Therapeutic jurisprudence aims to produce tangible, positive change: to promote the well-being of all legal actors and to improve the justice system so that it is more relevant and helpful for participants and their communities.” 

As we point out, TJ is a lens or framework through which to examine the legal and judicial systems. TJ asks us to think about the law in a very different way—to view the law as a helping profession rather than as an adversarial process in which there are always winners and losers. TJ urges judges and lawyers, for example, to consider the impact of their decisions and actions on the well-being of the parties who come before them. It asks all legal actors to think beyond the immediate facts of a case and to take into account the potential consequences, both intended and unintended, of their actions and decisions.

Addressing issues of marriage, divorce, custody, child support, adoption, property, and protection, among other issues, family law has a profound impact on people’s lives and well-being. Family law and the family justice system also include the child welfare system, or child abuse and neglect cases, and the juvenile justice system, or juvenile delinquency cases, both of which regularly define and/or change the trajectory of a child’s life.

Although TJ does not demand that judges and lawyers become social workers or psychologists, it does call for an interdisciplinary approach to judicial and legal decision-making. The social sciences offer important and helpful perspectives.

I believe that lawyers and judges in the family justice system should be trained to identify and address the legal and non-legal reasons underlying a family's problems. They also should be taught to examine the connections and interactions among family members, as well as the relationship of the family to community institutions. Judges and lawyers who use a holistic approach to strengthen these connections and who can find creative solutions to a family’s legal and non-legal issues are the true problem-solvers that these families and children need and deserve.

Field Trip to the Baltimore City Juvenile Justice Center

On November 6, 2013, the Center for Families, Children and the Courts Student Fellows and professors visited the Baltimore City Juvenile Justice Center located at 300 North Gay Street, Baltimore, MD 21202. We were fortunate enough to receive a tour of the facility by Rudy Adams, the Center’s managing director. We first met with Mr. Adams in a conference room to learn a little about the Center itself and how the Center functions.

Mr. Adams explained that this Center is only 1 of 3 of its kind in the nation. People from all across the world have come to visit this Center to see how things are done. This Center is unique in part because it is a multi-agency facility with a combined inter-government workforce housing the following departments: Department of Human Resources (including Baltimore City’s Department of Social Services), Office of the Public Defender, Baltimore City State’s Attorneys’ Office, Community Family Resource Center, Baltimore City Circuit Court (Juvenile Division), Baltimore City Clerk of the Court Office (Division of Juvenile Clauses), Baltimore City Sheriff’s Office, and Baltimore City Police Department. In addition to the aforementioned departments, there is also a detention center within the facility that provides residential housing for children in custody awaiting adjudication and disposition of delinquency cases.

I was amazed by this Center. I did not know it even existed prior to participating in the CFCC Student Fellows Program this semester. This Center is a great model for how Juvenile Justice should be handled. It was a one stop shop which seemed to make sense for an efficient handling of a case from beginning to end. Housing the multiple departments involved in these sorts of cases, all in one facility, is brilliant. Instead of having to waste time traveling or hearing back from another agency, you are only footsteps away.

Additionally, the tone of this facility was family friendly and fostered a welcoming atmosphere. There was artwork made by children in the community displayed in the hallways. There seemed to be several people within the agencies we passed on our tour who were dedicated to the Center’s mission and wanted to provide people in need with the resources available to assist them. I am fortunate to have had the opportunity to tour this Center and hope to see replicates appear in other jurisdictions in the near future!

Maryland’s Juvenile Justice System: Year in Review

CFCC’s 2012 Urban Child Symposium (UCS), entitled "The Urban Child in the Juvenile Justice System: The Beginning or the End?," focused on the  juvenile justice system.  Symposium panelists identified several priorities for juvenile justice system reform (more information is in the Unified Family Court Connection Winter 2013 Issue, which featured articles from several UCS presenters):

• Direct juveniles toward community and family-based treatment rather than incarceration;
• Address racial and ethnic disparities on a system-wide basis;
• Abandon laws that require or allow juveniles to be tried as adults; and
• Include all stakeholders in reform efforts.

In the past year, the juvenile justice system has received significant local and national media attention for improvements in policy and practice: 

• A Baltimore Sun op-ed praised the Maryland Department of Juvenile Services (DJS), under Secretary Sam Abed’s leadership, for making progress in diverting youth from confinement, decreasing overcrowding, and providing more community-based, evidence-supported alternatives to detention for youth offenders.  The Sun op-ed, based on a report by the independent Juvenile Justice Montoring Unit, announced that conditions and safety in Maryland’s youth detention centers have improved, with reported decreases in violence, injuries, group disturbances, and use of restraints.  
•  Longstanding plans to build a $100 million, 180-bed jail for juveniles charged as adults were scrapped, with $70 million allocated instead to renovate smaller facilities and build a desperately needed new treatment center.   A promising part of this plan includes placing youth who have been charged as adults but are eligible for waiver into the juvenile system in special juvenile pre-adjudication facilities.
• Mandatory sentences of Life Without Parole for juveniles, including for murder, have been abolished by the Supreme Court (see Bernadine Dohrn’s  article in the UFC Connection at page 5).
• An  Annie E. Casey Foundation national report  concluded that significant gains have been made in the last decade in reducing the youth prison population while also improving public safety, with Maryland showing some of the greatest improvements.  

These changes represent a sea-change from the highly punitive and largely ineffective practices of the 1990s toward evidence-based and holistic reforms that focus on alternatives to detention and improved outcomes for youth.  Capitalizing on the progress made in the past decade, the juvenile justice system should consider the following reforms, among others:

• Increase the availability of treatment programs and community and home-based alternatives to detention.  According to the Juvenile Justice Monitoring Unit report, hundreds of youth were held in detention centers for more than two months (with one youth waiting 217 days) last year while awaiting placement in treatment or other community-based programs .  DJS has already made significant progress in this area – the Baltimore City Juvenile Detention Center showed a 36 percent reduction in the number of youth who waited over two months for placement in a treatment program.  There is still room for improvement, given the risks of high-security detention for non-violent and low-risk youth.
• Improve conditions and expand availability of alternatives to detention for girls.  Programs and services for girls, who are generally low-risk and high-need, lag well behind those for boys.  Very few alternatives to detention in Maryland accept girls, and there is a dearth of programs and services available in the all-girls treatment facility (the Carter Center) and the detention facility (the Waxter Center), where numbers have remained nearly the same as last year.  The staff at Carter has been trained in the Attachment, Self-Regulation and Competency (ARC) model of trauma-informed care, a practice which should be continued and expanded to address other gender-specific needs of girls throughout the juvenile justice system.  DJS and its partners should continue working to bring the progress seen for boys to girls in the system and should consider racial, ethnic, and sexual orientation sub-populations to ensure that progress is equally helping meet their needs.
• Schools, social services, the courts, the police, DJS, and community-based resources should adopt promising practices to prevent youth involvement in the justice system and to end the “school-to-prison pipeline” or, more comprehensively, the cradle-to-prison pipeline.  Youth should have access to programs and services before they end up in the juvenile justice system. 

Policymakers and advocates must continue to work together to ensure that recent progress represents a new beginning, and not the end, of our efforts to improve outcomes for our youth.

Investing in Children’s Mental Health As a Preventive Law Approach to Juvenile Delinquency

Courts struggle with effective ways to deal with individuals whose mental health issues lead to criminal behavior. This is especially true for courts responsible for adjudicating juvenile delinquency. Childhood exposure to violence can impact children’s social and emotional development. It has been linked to poor social functioning and mental health issues, including depression, low self-esteem, anxiety, and depression. Some children repeatedly exposed to violence, particularly violence in the home, develop PTSD with symptoms such as re-experiencing, avoidance, numbing, attachment issues, and impulsivity and inattentiveness that mimic the symptoms of AD/HD¹. Children involved in the court system, both the delinquency and abuse and neglect systems, have higher trauma exposure rates than other children. They need access to mental health services and treatment programs that can provide appropriate intervention, and they need a trauma-informed court system that can work in tandem with these providers.

Yet as a CFCC Student Fellow examining Maryland’s delinquency system, I find myself wondering how effective our system is at meeting the needs of these children. The Maryland Department of Juvenile Services is charged with providing “individualized care and treatment to youth who have violated the law or who are a danger to themselves or others².” DJS treatment programs include Functional Family Therapy and Multi-systemic Therapy that provide services in both clinical settings and in the home. These interventions have the potential to help to positively impact children and their family unit as they address some of the underlying issues, including trauma, that lead to the child’s delinquency.

The problem with this model, however, is that children have to be adjudicated as delinquent before they have access to these services. This is especially problematic for poor families who cannot afford to pay for services on their own. Where middle and upper income families can afford to pay for private therapy programs to help their children who are acting out, families without these means must wait for the behaviors to worsen and the consequences to become more severe before intervention is available. By then, the intervention may be too little too late.

Perhaps it is not DJS’s role to provide access to mental health and family therapy services before youth are adjudicated as delinquent. The agency is after all charged with the care and rehabilitation of juvenile offenders. If DJS cannot provide these services, I think the state should provide access through another agency. While it is true that in the current economic climate funding for such programs is scarce, the state ends up paying the price down the road in the form of juvenile detention. Maryland spends $22.6 million each year to detain youth.³ According to one study, 2/3 of young people in juvenile detention would meet the requirements to be diagnosed with a mental disorder.⁴ Furthermore, Maryland continues to move forward with plans to spend $70 million building a 120-bed jail to house youth who have been charged as adults. Juvenile detention is expensive and arguably ineffective. Looking at these statistics, I believe that more investment at the front end to provide children and families with better access to mental health services could lead to lower rates of offenses. Our current system is reactionary. A proactive preventive approach would likely be a better use of the state’s limited resources.

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1 Lisa Pilinik & Jessica R. Kendall, The Safe Start Center Series on Children Exposed to Violence Issue Brief #7: Victimization and Trauma Experience by Children and Youth: Implications for Advocates (2012) available at www.safestartcenter.org.
2 Maryland Department of Juvenile Services, DATA RESOURCE GUIDE FISCAL YEAR 2011 (2012)
3 STOP BALTIMORE YOUTH JAIL: OPPORTUNITY NOT DETENTION, www.stopbaltimoreyouthjail.com.
4 Just Kids Partnership, JUST KIDS: BALTIMORE’S YOUTH IN THE ADULT CRIMINAL JUSTICE SYSTEM. A REPORT OF THE JUST KIDS PARTNERSHIP TO END THE AUTOMATIC PROSECUTION OF YOUTH AS ADULTS (2010) available at www.justkidsmaryland.org.

Stepping Back from Solitary Confinement

One recurring theme during the CFCC’s fourth annual Urban Child Symposium was that youth in the juvenile justice system are best served by community- and family-based treatment options, not incarceration. My colleague, Dana Shoenberg, helped explain why in her presentation on the needs of youth who get in trouble with the law. Incarceration is not only expensive, it’s actually associated with higher recidivism rates than other cheaper, more effective approaches to holding youth accountable for their behavior. When youth are locked up, they’re also exposed to a range of possible negative outcomes, including disengagement from school, severed connections with family members, deteriorating mental health conditions, and physical and sexual victimization by youth and staff.

Many jurisdictions are moving away from their reliance on incarceration for these very reasons. Yet we’re a long away from a world without secure facilities. Until then, we must take steps to ensure the safety of youth in our nation’s juvenile detention facilities and juvenile prisons. That means working to end the dangerous practices that take place behind those walls.
 

                                   © Richard Ross

Congress recently raised public awareness of one such practice: the excessive and inappropriate use of isolation. On June 19th, the Senate Judiciary Committee’s Subcommittee on the Constitution, Civil Rights and Human Rights convened the first ever congressional hearing on solitary confinement. Although the hearing focused primarily on solitary confinement in adult prisons and jails, many youth advocates attended and submitted pages of written testimony that outlined the particular dangers of isolating children in juvenile and adult facilities.  

One needs to look no further than the Special Litigation Section of the U.S. Department of Justice’s Civil Rights Division to find numerous examples of the inappropriate and excessive use of solitary confinement in juvenile facilities. For example, at the Oakley and Columbia Training Schools in Mississippi, staff punished girls for acting out or being suicidal by stripping them naked and placing them in a cell called the “dark room,” a locked, windowless isolation cell cleared of everything but a drain in the floor that served as a toilet. Other Justice Department investigations have documented the routine use of solitary confinement on mentally ill children and children with disabilities.

Professor Richard Ross of the University of California has spent the past few years photographing the inside of juvenile facilities around the country, taking pictures of cells used for solitary confinement of children along the way. The images are striking, conveying the sense of hopelessness and isolation that youth experience when placed in these settings. It’s no surprise that a recent study of suicides in juvenile facilities found a “strong relationship” between suicide and isolation, with approximately half of the study’s victims being in solitary confinement at the time of their death.

Juvenile Justice Reform: CFCC’s Urban Child Symposium, The Beginning or the End? The Urban Child’s Experience in the Juvenile Justice System

Professor Bernardine Dohrn opened CFCC’s fourth annual Urban Child Symposium with a powerful presentation on the Supreme Court’s recent consideration of juvenile justice cases.    Over 200 people attended “The Beginning or the End? The Urban Child's Experience in the Juvenile Justice System,” which included interdisciplinary panel discussions of issues such as the psychological, social, and emotional characteristics of juveniles; whether juveniles can and/or should be tried as adults; racial disparities/disproportionate minority representation; and the school-to-prison pipeline, among others.

You can view the agenda here and listen to some of the panelists discuss juvenile justice issues on WYPR’s Midday with Dan Rodricks here.

Professor Dohrn spoke about positive changes in the juvenile justice field in the past decade. She discussed recent Supreme Court decisions that have banned capital punishment for juveniles and life-without-parole for non-homicide juvenile offenses.  She urged symposium participants to pay attention to the Supreme Court’s recognition that children experience the world differently and that there must be a more accurate understanding of children’s interactions with the law.

Several ideas emerged during the course of the symposium:

•     Juveniles should be directed toward community and family-based treatment rather than incarceration. Speakers urged consideration of evidence-based, non-residential programs as the single most important alternative to sending juveniles to detention facilities, many of which are characterized by violence and poor conditions.  Speakers described a number of alternative and diversion programs that are proven to be more effective in addressing juvenile crime and recidivism.  The Annie E. Casey Foundation’s Bart Lubow and other speakers discussed the massive financial burden of juvenile incarceration (including Maryland’s proposed $100 million juvenile prison facility), which could be used instead to support widespread diversionary prevention and treatment programs.

•     Racial and ethnic disparities (“Disproportionate Minority Contact”) must be addressed on a system-wide basis and across all decision points in a juvenile case.  Special populations, like girls; trauma victims; children with special needs; and lesbian, gay, bi-sexual, and transgender youth must also be protected and considered.  Many presenters, including Professor Odeana Neal, attorney and reform advocate Dana Shoenberg, and Assistant State’s Attorney George Simms encouraged the expansion of best practices in this area to combat current differences in outcomes based on race, ethnicity, gender, and other characteristics.  

•     Laws requiring or allowing juveniles to be tried as adults should be abandoned because they hurt children and endanger society.  Professor Dohrn and other presenters reported that juvenile involvement in the adult criminal justice and prison systems is counter-productive.  Juveniles are often victimized by adults in the prison system, and recidivism (re-offending) increases for juveniles who come out of adult prisons. 

•     All stakeholders – including families, schools, prosecutors, departments of juvenile services, social workers, employers and more – should be involved in reform efforts.  Parent Advocate Kimberly Armstrong spoke poignantly about her experience as the parent of a child in the juvenile justice system.  Instead of finding support and collaboration in the juvenile justice system, she encountered multiple barriers when seeking help for her son and often felt alone in advocating on his behalf.  She now encourages all stakeholders in the juvenile justice system to enlist the support of parents and to treat them as valuable partners in addressing their children’s problems.

For more information, you can watch a podcast of the symposium proceedings and access many of the Powerpoint presentations here.  We hope that our presenters and participants will blog about the issues discussed during the event, and we welcome comments from our readers.