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ETHICAL DILEMMAS, FORENSIC

PSYCHOLOGY, AND THERAPEUTICJURISPRUDENCE

Ida Dickie*

Broadly speaking, the legal system and forensic psychologyhave in common the management of criminal behavior.However, one of the immense difficulties that psychologists facewhen trying to work within the legal system is that historically,the legal system has not been conducive to promoting

therapeutic change of criminal behavior.1

Some argue that anirreconcilable conflict exists between therapeutic and forensicpsychological roles in civil contexts.2 This position also existswithin the criminal contexts and promotes the idea that effectivepsychological assessment and intervention cannot occur withinthe legal system.3 However, with the relatively recentemergence of the legal theory of Therapeutic Jurisprudence(TJ),4 which articulates how the legal system can act as an agentof therapeutic change, a collaborative relationship betweenpsychology and law can exist.

The question now becomes: How can forensic psychologistsand the legal system work together to contribute simultaneouslyto the advancement and well-being of the offender, thecommunity, and society? This Article explores how the

* Ida Dickie, Ph.D., Director of Forensic/Correctional Psychology EmphasisArea, Spalding University. Correspondence can be addressed [email protected].

1. DAVID H. BARLOW & VINCENT MARK DURAND, ABNORMALPSYCHOLOGY: AN INTEGRATIVE APPROACH 554-55(Marianne Taflinger et al.eds., Thomson Wadsworth 4th ed. 2005).

2. Stuart A. Greenberg & Daniel W. Shuman, Irreconcilable ConflictBetween Therapeutic and Forensic Roles, 28 PROF. PSYCHOL.: RES. & PRAC.50,50(1997).

3. James McGuire, Ethical Dilemmas in Forensic Clinical Psychology, 2

LEGAL &CRIMINOLOGICAL PSYCHOL.177,186(1997).4. David B. Wexler & Bruce J. Winick, Therapeutic Jurisprudence as a New

Approach to Mental Health Law Policy Analysis and Research, 45U.MIAMI L.REV.979,981-90(1991).

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Therapeutic Jurisprudence Model5 (TJ Model) may reconciletraditional clinical and forensic psychological roles. Beforediscussing how the TJ model can assist with such reconciliation,

two basic assumptions must be accepted.First, forensic psychologists and the law have a common

goal: the prevention and management of criminal behavior.Many of psychologists ethical dilemmas in forensic settings stemfrom the belief that psychology and the law do not have acommon goal.6 Furthermore, for forensic psychologists and thelaw to truly work together towards the shared goal of preventionand management of criminal behavior, the legal system has toproduce an environment that is conducive to therapeutic efforts.TJ may provide such an environment.

TJ is defined as the study of the legal systems role as atherapeutic agent.7 Therapeutic is defined as promoting theadvancement and well-being of the offender, the community,and society.8 This does not change the focus of TJ, which is thelaw, but it allows for movement away from the traditionaladversarial nature of the legal system, providing a frameworkthat allows the law to take into account human needs and the

5. See, e.g., PRACTICING THERAPEUTIC JURISPRUDENCE:LAW AS A HELPINGPROFESSION (Dennis P. Stolle, David B. Wexler, & Bruce J. Winick eds., 2000);Symposium, Special Theme: Therapeutic Jurisprudence and Preventive Law:Transforming Legal Practice and Education, 5 PSYCHOL.PUB.POLY &L.795(1999);David B. Wexler & Bruce J. Winick, Putting Therapeutic Jurisprudenceto Work, 89 A.B.A. J. 54 (2003); Symposium, Symposium Issue: TherapeuticJurisprudence in Clinical Legal Education and Legal Skills Training, 17 ST.THOM. L. REV. 403 (2005). See generally JUDGING IN A THERAPEUTIC KEY:THERAPEUTIC JURISPRUDENCE AND THE COURTS (Bruce J. Winick & David B.Wexler eds., 2003) (applying approach to judging).

6. James McGuire, Maintaining Change: Converging Legal andPsychological Initiatives in a Therapeutic Jurisprudence Framework, 4 W.CRIMINOLOGY REV.108,108(2003);see alsoLeroy L. Kondo, Advocacy of theEstablishment of Mental Health Specialty Courts in the Provision of Therapeutic Justice for Mentally Ill Offenders, 28 AM. J. CRIM. L. 255, 258(2001).

7. See generally DAVID B. WEXLER & BRUCE J. WINICK, ESSAYS INTHERAPEUTIC JURISPRUDENCE (1991). See also DAVID B. WEXLER,THERAPEUTIC JURISPRUDENCE: THE LAW AS A THERAPEUTIC AGENT (1990)[hereinafter LAW AS A THERAPEUTIC AGENT]; David B. Wexler, Reflections onthe Scope of Therapeutic Jurisprudence, 1 PSYCHOL.PUB.POLY &L. 220, 224(1996).

8. See Christopher Slobogin, Therapeutic Jurisprudence: Five Dilemmas toPonder, 1 PSYCHOL.PUB.POLY &L. 193, 196-97 (1995) (arguing three possibledefinitions of the term therapeutic).

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emotional well-being of offenders.9 Slobogin defines TJ as theuse of social science to study the extent to which a legal rule orpractice promotes the psychological and physical well-being of

the people it affects.10

Therefore, the second assumption that must be accepted is

that the legal system can indeed function as a therapeutic agentof change. Critical reviews of the TJ Model have suggested thatthe legal system is not capable of operating as a therapeuticagent or within a therapeutic framework because it is impossibleto overlook the punitive ideology, power imbalance, andviolence embedded in the law.11 Brakel argues that TJ is beingcharacterized as a panacea for the all-too-real ills of theadversarial system.12 He also argues that TJ fails to recognizethat [m]odern mental health law was conceived when courtsand commentators recognized that psychiatrists and other

mental health professionals often promised society------and thelegal system------far more than they were able to deliver.13Although there is limited empirical work examining the basicpremise that the legal system can indeed function as therapeuticagent, this Article embraces the assumption that the law can beapplied in a therapeutic way. Despite being predicated upon apunitive model, the law can operate therapeutically to minimizethe inevitable anti-therapeutic impacts and facilitate ethicalstandards of psychological practice.

Principles of ethically sound psychological conduct havebeen articulated to include: 1) beneficence------acceptance of

responsibility to do good;14

2) non-malfeasance------acceptance of aneed to do no harm;15 3) autonomy------respect for others freedom

9. Andrea Kupfer Schneider, The Intersection of TherapeuticJurisprudence, Preventive Law, and Alternative Dispute Resolution, 5PSYCHOL.PUB.POLY &L.1084,1086-87(1999).

10. Slobogin, supranote 8, at 196.11. Bruce A. Arrigo, The Ethics of Therapeutic Jurisprudence: A Critical

and Theoretical Enquiry of Law, Psychology and Crime, 11 PSYCHIATRY,PSYCHOL.&L.23,35-37(2004).

12. Samuel J. Brakel, Searching for the Therapy in TherapeuticJurisprudence, 33 NEW ENG.J. ON CRIM.&CIV.CONFINEMENT 455,467 (2007).

13. Id. at 469.

14. Elizabeth Reynolds Welfel & Karen Strohm Kitchener, Introduction tothe Special Section: Ethics Education------An Agenda for the 90s, 23 PROF.PSYCHOL.:RES.&PRAC.179,180 (1992).

15. Id.

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of thought and action;16 4) justice------basing actions on fairnessbetween individuals;17 5) fidelity------trustworthiness tocommitments;18 and 6) respect for a persons rights, dignity,

competence, responsibility, and integrity.19

These ethicalprinciples are difficult to apply within the legal system as itcurrently operates.20 Therefore, a broader interpretation ofthese principles is needed, with particular attention to effectivetreatment principles within forensic settings, most notably theresponsivity principle.21

For example, the aforementioned ethical principles mayneed to be conceptualized within a collectivistic model, in legalsettings where the individual, the victim, and the community areconsidered inseparable as clients. Why does it have to beunethical to consider the needs of the victim as well as theoffender when treating the offender? It is possible that the

offender requires a different therapeutic approach, such that ifthe needs of the victim are not considered during therapy, theoffenders treatment will be ineffective.

Similarly, a commitment to beneficence and non-malfeasance within the forensic setting may require a collectivistapproach because harm may be more likely if the offender, thevictim, and the community are not considered together. Thevictims concerns of not being harmed in the future can only beaddressed by offering assistance to the offender, whichultimately benefits the community at large, including the victim.Helping the offender manage his or her risk level so that he or

16. Id.17. Id.18. Id.19. See JANEL GAUTHIER, INTERNATIONAL UNION OF PSYCHOLOGICAL

SCIENCE, ONWARD TOWARD A UNIVERSAL DECLARATION OF ETHICALPRINCIPLES FOR PSYCHOLOGISTS: DRAFT AND PROGRESS REPORT, 3 (2007),http://www.am.org/iupsys/ethics/index.html (follow Progress Reports: 2006hyperlink) (last visited Mar. 22, 2008); see also European Federation ofProfessional Psychologists Associations, http://www.efpa.be/ (follow Ethicshyperlink, then Ethical Principles hyperlink) (last visited Mar. 22, 2008).

20. McGuire, supranote 3, at 182.21. See D.A. ANDREWS &JAMES BONTA, THE PSYCHOLOGY OF CRIMINAL

CONDUCT 279-83 (Ellen S. Boyne & Michael C. Braswell eds., Anderson Publg4th ed. 2006) (1994) (describing the responsivity principle which offersspecialized treatment programs for high risk offenders, specifically focusing onthe offenders learning style and needs, thus facilitating the offenders ability toenter, engage, and complete treatment).

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she is not likely to harm others does not have to be consideredundesirable. In fact, not assisting the offender in managing hisor her risk level, for example by imposing jail time rather than

treatment, harms the offender and the community at large.If psychologists are going to use the collectivist model in

conceptualizing the treatment of criminal behavior, the questionthat needs to be asked is: Are there modifications that need tobe made to traditional clinical principles to allow psychologiststo practice effectively within legal settings? This question canonly be addressed if the legal system is committed to upholdingpsychological ethical principles.

The TJ Model calls for an increased psychologicalsensitivity in the attorney/client relationship, [and] an awarenessof some basic principles and techniques of psychology . . . .22This means that lawyers will utilize motivational interviewing23skills and consider all aspects of the offenders lives whendevising defense or prosecution strategies. This allows for thebalancing of the rights of the offenders and public safety.24

The underlying principles of TJ are: 1) psychological well-being is increased, decreased, or neutrally effected by the waylaw is implemented; 2) the law should capitalize on peoplesentry into the legal system to promote a pro-social lifestyle; 3)the law can be a multi-disciplinary endeavor in which psychologyand law cooperate to enhance well-being; and 4) the law weighscommunity protection (justice principles) against individualneeds (therapeutic principles).25 These underlying principles

promote a collectivistic approach to ethical dilemmas within thelegal system.

The Ethical Code proposed by the TJ Model suggests: 1)the offender must be treated with procedural fairness;26 2) the

22. Bruce J. Winick & David B. Wexler, The Use of TherapeuticJurisprudence in Law School Clinical Education: Transforming the CriminalLaw Clinic, 13 CLINICAL L.REV.605,609(2006).

23. Id. at 614.24. See Slobogin, supra note 8, at 216. For more information on how

clinical concepts are being introduced into legal training, see Winick & Wexler,supranote 22.

25. Astrid Birgden, Therapeutic Jurisprudence and Good Lives: ARehabilitation Framework for Corrections, 37 AUSTL.PSYCHOLOGIST 180,182(2002).

26. Bill Glasser, Therapeutic Jurisprudence: An Ethical Paradigm for

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amount and type of treatment is governed equally by theseriousness of offen[s]e . . . [and] the need for treatment;27 3)[i]nfringements on an offenders legal rights must be

minimi[z]ed,28

or the least restrictive alternative principle;29

and 4) non-malficence.30 The TJ Model allows for a moretherapeutic approach to managing criminal behavior in which allinvested parties, including psychologists, lawyers, andcorrectional officers can balance the rights of the offendersagainst public safety.31 The TJ Model promotes an environmentwhere collaboration between the law, psychiatry, communitymental health, and psychology can assist offenders indetermining how to live their lives differently. The TJ EthicalCode can be subsumed into the larger ethical code under whichpsychologists practice, thus helping to resolve some of the ethicaldilemmas that psychologists face while working within the legal

setting. The TJ Model offers psychologists a way to respectoffenders self-determination and autonomy, even when it mustbe reduced, and suggests that such reductions can haveimportant therapeutic value.32

Although a debate exists regarding whether the legal systemcan indeed be therapeutic,33 the broader implications of the TJModel are that forensic psychologists may be able to practicewithin a legal system that respects an interdisciplinary and

Therapists in Sex Offender Treatment Programs, 4 W.CRIMINOLOGY REV.143,151 (2003) (arguing that procedural fairness includes the right to notice of a

hearing, the right to be heard by an unbiased judge, [and] the right to legalrepresentation . . . .).

27. Id.28. Id. at 152 (explaining that the guiding rule is that of non-malficence;

minimally restrictive treatment/punishment interventions are used becauseunnecessary punishment is intrinsically unethical.).

29. Id. (advocating that if two punishments, one harsher than the other, areequally as effective in deterring a crime, then the less harsh one is to be used).

30. Id.31. See Slobogin, supranote 8, at 216.32. Id.; see alsoRobert F. Schopp, Therapeutic Jurisprudence and Conflicts

Among Values in Mental Health Law, 11 BEHAV. SCI & L. 31, 41-42 (1993)(arguing that under some circumstances, the state may be able to infringe on apersons independence to give him or her the capacity to make autonomouschoices; however, in cases where individuals do not pose a violent threat,peoples autonomy should take priority over improving their well-being tomaintain his or her status as sovereign and a persons ability to define his ownlife and embrace various aspects of well-being as his well-being).

33. See, e.g., Brakel, supranote 12, at 458-59; Arrigo, supranote 11, at 23.

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psychologically oriented approach to the management ofcriminal behavior. Further research is required to determine ifindeed the TJ Model embraces a rehabilitative approach to

criminal behavior and assists with managing the ethicaldilemmas faced by forensic psychologists. However, the TJparadigm appears to concern itself with the clients needs andemotional well-being, as well as the offenders rights, whichultimately encourages adherence to ethical standards andresolution of forensic and clinical psychology roles.

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