This article has been written by Astitva Singh, 3rd year Law student at Institute of Law, Nirma University
Therapeutic Jurisprudence (TJ) combines law, procedures, and behavioural science to understand the unintended psychological and emotional impacts that legal processes can have on litigants. Formulated by David Wexler and Bruce Winick in the 1980s, it aims to reduce the negative impact of law by encouraging changes in attitudes and actions among legal professionals such as judges and lawyers. TJ embodies an interdisciplinary approach, harmonizing law, psychology, and social sciences to prioritize the well-being of individuals involved in legal proceedings. It seeks to prevent harm by inspiring attitudinal and actional changes in legal actors, fostering a holistic perspective that considers social, cultural, and psychological factors. At its core, TJ advocates client-centered justice, encouraging proactive problem-solving and a therapeutic decision-making process. Emphasizing enhanced communication, it envisions continuous improvement in legal processes to align with therapeutic objectives and contribute positively to the lives of those affected by the law.
Judges having supreme authority over their courts, can best induce the TJ principles in trials. Traditionally, judges’ engagement in a courtroom is circumscribed to the interplay of facts and laws in a legal dispute, reflecting the principles of positivist school of law. This school of law emphasizes a strict interpretation of legal rules, focusing on their application without necessarily delving into the broader societal implications. It’s not perceived as the aligning responsibility of the judge to contemplate upon the side effects of legal procedures and act accordingly. For example, examining a sexual assault victim austerely, disregarding her victimhood, could re-victimize and downgrade the reputation of the justice system; TJ aims to foster the acknowledgement and undertaking of such responsibility by the judges in every day trials.
This article intends to present varied elementary techniques and approaches a judge should incorporate, as propounded by TJ jurists and as practiced in global jurisdictions, during different stages of a trial for comprehension and execution of TJ philosophies in the criminal justice system along with the complexities in its application in the country like India in each stage.
TJ advocates enhanced participation of both the laymen parties in the trial process to cultivate an impression of inclusion in them, rather than confining it to a trialogue among advocates and judges. Achieving it in the pre-judgement stage would include the involvement of the accused in ascertaining the voluntariness of the pleading, letting the accused explain the reasons for his pleading and having a dialogue. This would implicate a positive attitude towards him early in the trial and consequently could motivate constructive contribution in the accused for the rest of the trial.
Judges can introduce individually in their courts a Victim Impact Statement, which is the expression of sundry afflictions due to crime orally or in written form by the victim. This could give voice to the victim in the trial and the perception of integration in the case to satisfy TJ principles. Also, the prosecutor can include the victim in the trial by empowering her to have a say, not necessarily a critical sway, in deciding pivotal questions. Such questions can include the following: what should be the charges, whether to plea bargain, what and how evidence should be exhibited, etc. to enhance the victim’s sense of participation and justice. It aligns with therapeutic jurisprudence principles by recognizing the psychological impact on the victim and fostering a more inclusive and empathetic legal process. Balancing victim involvement with the need for impartiality and due process is crucial for the success of such initiatives.
Court language’s intelligibility is popularly diminutive among the masses, a factor restricting the realization of the TJ principle of enhanced participation for all. Learned Hand’s assertion, “The language of law must not be foreign to the ears of those who are to obey it,” subtly aligns with the principles of TJ. Therefore, simple and comprehendible language should be used in courts for non-professionals’ convenience to facilitate compatibility with the court proceedings.
In this stage, TJ advocates for increased participation of laymen parties. However, India’s diverse socio-economic landscape poses challenges. Access to legal representation and comprehension of court proceedings can vary widely, making true inclusivity a daunting task. Language barriers and limited legal literacy among the masses exacerbate these challenges, demanding a nuanced approach to ensure meaningful participation.
Implementing Victim Impact Statements in India encounters cultural and societal barriers, where victims might be reluctant to openly express their trauma. Indian criminal law recognizes the victim’s role but does not explicitly mandate Victim Impact Statements. The Code of Criminal Procedure (CrPC) allows victims to be heard during sentencing, but the format may not be as structured as a Victim Impact Statement. However, The Criminal Law (Amendment) Act, 2018, introduced provisions for victim compensation. While it doesn’t mandate Victim Impact Statements, it acknowledges the need to compensate victims, indirectly recognizing their role. Additionally, empowering victims in decisions like plea bargaining could be complicated due to existing power dynamics and social structures.
Moreover, the temporal constraints in India’s legal system, driven by an overload of cases, further impede the effective application of discussed TJ methodologies. However, the criminal justice system is compelled to discover a solution for integrating TJ, possibly initiating such integration by determining the indispensable cases for TJ application.
Judgement, being one of the most anticipated stages in a trial, induces the highest impact upon the victim and the accused, thus necessitating delivering it in a therapeutic way to minimize adverse effects upon parties. It does not connote deviating from the standard methodology of deciding a case, that is relying on facts, laws and preceding case laws, but solicits additional considerations in judging.
Michael S. King’s book on solution-based judging ideates that a judgement should be a communicative message to the losing party, explaining the reasons for their loss using positive language. This approach aims to facilitate acceptance of the decision while conveying the reality of their position. Highlighting the mistakes and offering corrections to the losing counsel, along with extending optimistic expressions towards his client (victim or accused) could aid in an affirmative response to the verdict. Moreover, a judgement should encompass the acknowledgement of any issue raised by the parties, this conveys the respect of the court to the parties. What TJ recommends is abstaining from demeaning the individual in the judgement, focusing solely on the actions of the person; otherwise, the emotion of resentment against the justice system may develop. Such caution must be exercised especially in the context where both the parties share familial relationships, like divorce cases, as insensitive and derogatory remarks may augment the discord between them. Appeal courts hold the professional and conscientious responsibility to edify the lower court in the judgement given on the appeal from the lower court. When highlighting shortcomings in a lower court judgement, it is advisable to avoid using aggressive and vehement language. The purpose is to foster an environment conducive to the acceptance of flaws by the judicial officer, promoting a more constructive and amicable approach to addressing deficiencies.
It has been proposed to empathize with the accused in decision-making, that is, to put themselves in the position of the accused to analyse what resort they potentially would have favoured. It advances judicious and educated judgement-making in the officers. Again, this consideration does not solicit neglecting the customary procedure of deciding a lawsuit but only urges for the addition of an empathetic procedure. Providing an explanation of the judgement to both parties, akin to the clarification extracted from the accused about the charges, not only instils a sense of significance for the parties but also ensures a comprehensive understanding of the decision. The level of compliance with the edict significantly increases when the judge elucidates the rationale behind the judgement. This transparent communication not only enhances understanding but also seamlessly paves the way for a discussion on the subsequent aspect—the sentencing stage.
Delivering judgements therapeutically requires judges to communicate decisions positively and respectfully. In India, where the legal system often faces a backlog of cases, time constraints may hinder the adoption of this approach. Moreover, cultural nuances demand judges to be cautious in family-related cases to avoid exacerbating discord. Sensitizing judges to cultural diversity become imperative for a successful application of TJ principles.
While empathizing with the accused is crucial, it may conflict with the traditional role of judges as impartial arbiters. Striking a balance between empathy and maintaining objectivity poses a significant challenge, particularly in a country as culturally diverse as India.
However, certain legal mechanisms like Section 357 of the CrPC empowers courts to order restitution to victims. This aligns with the TJ principle of addressing the needs of victims and considering the impact of the offense, also while not explicitly mentioned in the original article, promoting ADR mechanisms is an evolving aspect in India. The Commercial Courts Act, 2015, encourages settlement through ADR, aligning with the idea of therapeutic resolution.
Sentencing, in a trial process, dictates the utilization of TJ principles even in ordinary courts, as determining appropriate punishment prescribes cognizing the life story of the convict. TJ, however, demands more than just knowing the accused, it enjoins the judge to aid the convict in confronting and realizing his problem and voluntarily opting for a rehabilitation programme. Bruce J. Winick in his article reflects upon the techniques a judge should employ to prompt such realization. It urges the judges to interact with offenders sensitively and empathetically, easing any discomfort in discussing their issues. It emphasizes the importance of avoiding patriarchal comments that might trigger unsettling emotions. Additionally, recognizing the significance of non-verbal cues is highlighted, acknowledging that not all offenders are proficient speakers and emphasizing the responsibility of judges to understand body language. Individuals who demonstrate a genuine commitment to rehabilitation are more likely to succeed in treatment programs. Acknowledging this, judges play a pivotal role in fostering the success of rehabilitation initiatives. To further motivate committed convicts, judges should transparently communicate the potential benefits tied to their active participation in treatment. This involves providing information about the realistic prospects of receiving remission of charges or a reduction in their punishment upon the successful completion of the prescribed rehabilitation program. By doing so, judges not only encourage a more engaged and cooperative approach from the convicts but also align with the fundamental principles of therapeutic jurisprudence, which seeks to promote positive behavioural changes through a rehabilitative lens within the criminal justice system. Further, it states the adoption of interviewing techniques to constructively awaken his realization of the problem (like establishing a connection between the offender’s drinking habit and his divorce and unemployment). A judge could introduce a behavioural contract, where the convict affirms to abide by its terms openly in the court among family members for fastening adherence to the rehabilitation conditions. Psychological research regarding the fairness of legal procedures suggests enhanced contentment and inclination to follow the orders in parties, when interacting with dignity, hence motivating positive behaviour from judges.
David Wexler, one of the proponents of TJ, in an article emphasizes the above-mentioned behavioural contract for granting probation. He advocates judges to devise distinctive strategies with behavioural contracts, for example, a judge can conceive endorsement of a behavioural contract by the convict as a prerequisite for probation, where he promises to uphold the norms set for probation. In many current systems, the conditions for probation are often standardized and may not involve a direct agreement or contract between the judge and the convict regarding behavioural expectations. The proposed method, on the other hand, recommends the creation of distinct and tailored behavioural contracts. These contracts would outline specific norms and expectations for the individual seeking probation, and the convict would endorse this contract as a prerequisite for being granted probation. This personalized and agreement-based approach aims to enhance individual accountability and engagement in the rehabilitation process, potentially offering a more nuanced and effective way of addressing the needs of each offender. Furthermore, stipulating the convict to investigate the reasons for committing the offence with the help of a rehabilitation team and remedies to counter it, could be another precondition for probation.
All these are solution-based approaches to judging for partially rehabilitating the convicts in the court itself, for stimulating self-transformation in offenders, rather than mere superficial involvement in sentencing. An assertion could be the existence of specialized courts for establishing such a profound attachment with the case, but mainstreaming it in all the traditional criminal courts would generate better and expedited results.
In India, resource constraints pose a significant challenge for integrating Therapeutic Jurisprudence (TJ) principles into sentencing. The lack of specialized courts hinders the depth of engagement required by TJ, and societal stigmas may impede open communication between judges and offenders. Cultural norms and prejudices create resistance to discussing personal problems, affecting the therapeutic engagement envisioned by TJ. Judges must navigate a cultural context where patriarchal comments and societal expectations exacerbate emotional burdens on offenders. In a system burdened by case overload, conveying the benefits of rehabilitation may be challenging. The absence of incentives, like reduced charges upon program completion, may dampen enthusiasm. Introducing behavioural contracts faces resistance in a society where legal proceedings are often seen as formal and rigid, and convincing offenders to commit to specific terms may encounter scepticism without a cultural shift toward viewing such contracts as conducive to rehabilitation.
Indian laws, including the Probation of Offenders Act, provide for probation and the possibility of rehabilitation programs. However, the implementation varies, and specialized courts for rehabilitation are not widespread. While not explicitly termed as “behavioural contracts,” conditions for probation and parole are often outlined, but the formalized structure outlined here is not prevalent. For cases involving mental health issues, the Mental Healthcare Act, 2017 emphasizes the rights of persons with mental illness. While not directly related to sentencing, it reflects a growing awareness of mental health considerations in legal processes.
Judges should discern their potentiality, to produce a therapeutic impact on the litigants, to elicit amelioration in advocates, other judges, and transformation in offenders. Additionally, they can assist released offenders in resynthesizing with society by accommodating education, employment, housing, etc. through their networks and affiliations. Incontestably, their principal obligation is adjudication but they must perceive themselves as social workers to appreciate the supplementary duty of conscious integration of TJ tenets in various stages of trial and even after trial. For example, a UK judge sends a letter to offenders for addressing any concern voiced at the hearing, playing the role of a social worker.
Inarguably, temporal constraints owing to an overload of cases impede the application of discussed TJ methodologies, but the criminal justice system is compelled to discover a solution for integrating TJ, possibly initiating such integration by determining the indispensable cases for TJ application.