Therapeutic Jurisprudence and the Rehabilitative Role of the Criminal Defense Lawyer

Abstract

Therapeutic jurisprudence (TJ) is maturing, moving rather rapidly from the world of theory to the world of practice. It is only natural, therefore, for therapeutic jurisprudence to work its way into the law school curriculum and into legal clinics and clinical legal education.

In the area of criminal law, the practical side of therapeutic jurisprudence has, to date, been reflected more in judicial activity than among the practicing bar. Judicial interest is mounting internationally, especially in the areas of drug abuse, mental illness, domestic violence, and related concerns of the criminal justice system. Since judges are in an enviable position to influence local legal culture and climate, it is likely that courts will encourage the development of a criminal law bar attuned to these concerns. Indeed, even without a push from the judiciary, some lawyers have begun to practice criminal law in a specifically therapeutic key. Mostly, interested lawyers will likely augment a traditional criminal law practice with the more holistic approach suggested by therapeutic jurisprudence, and the present article seeks to point interested practitioners in that direction.

In this article, I will identify the potential rehabilitative role of the attorney from the beginning stages - possible diversion, for example - through sentencing and even beyond - through conditional or unconditional release, and possible efforts to expunge the criminal record. This article has two principal purposes; first, to call for the explicit recognition of a TJ criminal lawyer, and to provide, in a very sketchy manner, an overview of that role; second, to propose an agenda of research and teaching to foster the development of the rehabilitative role of the criminal lawyer. While much of the proposed research would discuss the rehabilitative potential of applying the current law therapeutically, practitioners and scholars working in this area will also naturally have occasion to consider alternative approaches, resulting in proposals for law reform.

Keywords: Therapeutic jurisprudence, TJ, clinical legal education, criminal defense, criminal rehabilitation

JEL Classification: K4, K42