Abstract

Excerpted From: Michael L. Perlin, “In These Times of Compassion When Conformity's in Fashion”: How Therapeutic Jurisprudence Can Root out Bias, Limit Polarization, and Support Vulnerable Persons in the Legal Process, 10 Texas A&M Law Review 219 (Winter, 2023) (297 Footnotes) (Full Document)

I recently wrote an article with two practicing forensic psychologists about the practical and ethical implications of what we referred to as “trauma-informed forensic mental health assessment.” As part of our analysis of the implications of therapeutic jurisprudence principles for such assessments, we said this: “[Therapeutic Jurisprudence] seeks to ferret out biases, and to deal with the vulnerabilities of so much of the population in question [, and] is a means of potentially avoiding the polarization that is often the hallmark of traditional litigation.” Although there is [Therapeutic Jurisprudence] literature about each of these factors, no article has yet considered the [Therapeutic Jurisprudence] implications of dealing with all of them. This is my aim here.

My thesis is relatively simple and straight-forward. Two of the core tenets of [Therapeutic Jurisprudence] in practice are adherences to dignity and to compassion. I believe that with these principles as touchstones, [Therapeutic Jurisprudence] can be an effective tool--perhaps the most effective tool--in rooting out bias, limiting polarization, and supporting vulnerable persons in the legal process. I believe that these ends affirmatively “inject[] therapeutic concerns into legal and policy reasoning and analysis,” and flow directly from the earliest writings in this area by the two founders of the [Therapeutic Jurisprudence] school Wexler and Bruce Winick. But as I discuss subsequently, this cannot and will not happen until more judges understand the potentially reformative (and transformative) role that [Therapeutic Jurisprudence] may have in the entire legal process. My review of some relevant caselaw--a review that, to the best of my knowledge, has never previously been undertaken in this manner--suggests that this is by no means a sure thing.

This Article will proceed in this manner. First, I will briefly consider the “creation and dynamic growth” of [Therapeutic Jurisprudence] over the past 30 years, looking specifically at the interplay between [Therapeutic Jurisprudence] and the values of dignity and compassion. Then, I will assess the role of [Therapeutic Jurisprudence] in dealing with the issues most central to this Article: bias, polarization, and vulnerability. I next review court decisions--both domestic and from other nations-- in which [Therapeutic Jurisprudence] is explicitly mentioned (and in some cases, relied upon). Following this, I will look at some relevant caselaw (both domestic and from other nations) in which (1) [Therapeutic Jurisprudence]--either explicitly or implicitly-- helped bring about a solution that minimized bias or polarization, or offered support to vulnerable persons or classes; (2) the failure to employ [Therapeutic Jurisprudence] led to decisions that reinforced bias and ignored the needs of those who are vulnerable; or (3) a determination of one's perspective is needed to determine if one sees the case as “pro-[Therapeutic Jurisprudence]” or “anti-[Therapeutic Jurisprudence].” I then, in conclusion, offer some modest suggestions.

My title comes from a truly obscure Bob Dylan song, “Foot of Pride,” on which I have drawn once before. The song is significantly under-analyzed in the Dylan literature, but critical references do discuss how it reflects “the decline and fall of human decency” as well as “today's iniquities.” This is the only song in which Dylan mentions compassion, and he does so in the same line in which he discusses the fashionability of conformity. Therapeutic jurisprudence has never been the most fashionable of legal schools of thought (as it is certainly nonconformist), but there is no question that it describes “a movement towards dealing with legal problems in a more restorative and healing fashion.”

[. . .]

I believe that it is essential that all participants in the legal system-- judges, lawyers, court administrators (as well as those who frequently testify)--take seriously the conception of therapeutic jurisprudence as well as its key characteristics. Because of [Therapeutic Jurisprudence]'s focus on dignity and compassion, it is the best tool that I know of to root out bias, limit polarization, and support vulnerable persons in the legal process. As I have sought to demonstrate in this Article, although there have been some important and vivid examples of courts--both in the United States and elsewhere [Therapeutic Jurisprudence] principles and techniques to serve this purpose (both before and since [Therapeutic Jurisprudence] was “created” as a topic of legal analysis), I remain saddened that it still remains off the radar for so many lawyers and judges (and law professors).

I have written frequently before about how [Therapeutic Jurisprudence] is the best “tool” in our toolkit to combat sanism and pretextuality in the law, to minimize heuristic decision-making, and to shine a light on decisions that flow from faulty “ordinary common sense.” It is tragic that so few judges have embraced its principles and employed them in ways that truly empower litigants and lead to unbiased decisions, which in turn lead to authentic justice for vulnerable individuals in ways that are less polarizing than so much of what goes on in the legal system, both on the parts of lawyers and litigants. Ironically, so many of the most [Therapeutic Jurisprudence]-in-spirit cases were decided before the idea of [Therapeutic Jurisprudence] was ever articulated.

In In re Mental Health of K.G.F., the Montana Supreme Court found that state residents had a right to receive compassion from the state, relying on the dignity clause of the state constitution. It is hard to fathom an opinion more supportive of therapeutic jurisprudence principles than this one, albeit one that was, for the most part, subsequently discarded 16 years later. But this is such a rarity. In stark contrast, there is the dissent of Justice Alito in Hall v. Florida. It is hard to fathom an opinion that is more devoid of compassion and more dismissive of the concept of the dignity of persons who come before the courts. If [Therapeutic Jurisprudence] is relied on by counsel and employed by courts, this will best ensure decisions that are optimally free of bias via approaches that improve therapeutic functioning without sacrificing civil rights and civil liberties.

In “Foot of Pride,” Bob Dylan sang about “these times of compassion when conformity's in fashion.” Immediately after that, he sings the chorus of the song:

Well, there ain't no goin' back

When your foot of pride come down

Ain't no goin' back.

In an earlier article about law school teaching methods, I concluded, “Too many law schools have a ‘foot of pride’ when it comes to rethinking the curriculum, rethinking teaching methods, rethinking how we do things.” I believe the same conclusion holds true for judges and for lawyers as well. If we do cast aside our everyday practices and adopt [Therapeutic Jurisprudence] ones instead, then, there truly will be “no goin' back.”

Michael L Perlin is a Professor Emeritus of Law at New York Law School, where he was founding director of the International Mental Disability Law Reform Project, and co-founder of Mental Disability Law and Policy Associates.