Social Science Research in a Therapeutic Jurisprudence Context

There are several inherent qualities of therapeutic jurisprudence as a theory that make it an exciting and pertinent enterprise for social science researchers: defined and measurable constructs, a focus on process and the link to outcomes, and an emphasis on context each make it amenable to research. Broadening the scope of who is included in the research is another inherent quality. Lastly, therapeutic jurisprudence provides a rationale for incorporating behavioral science into legal practice.

First, therapeutic jurisprudence specifically lays out the constructs to be studied. From a research perspective, the four main constructs are: legal rules, legal procedures, legal actors, and emotional well-being. These constructs can be studied separately or together. Operationalizing these constructs for research purposes is a reasonable task given the tangible nature of the constructs themselves. The first three constructs would generally constitute the independent or predictor variables, with emotional well-being as one outcome variable (among others). For example, Poythress and Brodsky (1996) examined how hospital staff and hospital procedures were affected by a negligent release lawsuit against hospital staff. Here, the authors looked retrospectively at change in staff attitudes and behavior, and at change in hospital procedures as an indicator of therapeutic or antitherapeutic consequences of a lawsuit. Arguably, the dependent and independent status of the constructs is less important when the research design does not capture causality; that is, we cannot say that the effects on staff are a direct result of the lawsuit, and the authors specifically note this. Thus, a cause-effect order cannot be assumed. Therapeutic jurisprudence as a theory presents an order of cause and effect (i.e. what a legal actor does affects a therapeutic or antitherapeutic outcome whether it produces emotional well-being or its opposite). For research purposes, however, as long as the basis of the research method is relational (Rosenthal and Rosnow, 1991) or establishing correlations, as is often the case, the predictor and outcome status of the variables being studied is essentially interchangeable.

Furthermore, these constructs are measurable in a host of ways. How a judge interacts with a defendant can be measured through quantitative instruments that measure attitudes or behaviors. Qualitative methods can also be used, including observation or interviews. One of the authors observed a judge-defendant interaction, as it occurred in the courtroom, then conducted open-ended interviews with defendants and the judge (Petrucci, 2002). The effects of legal rules or legal procedures can also be observed in action or documented through surveys, questionnaires, or document review. Poythress and Brodsky (1996) examined how hospital procedure had changed by interviewing hospital staff and by examining hospital release records. Contrast this with general deterrence theory which states that certainty, severity, and swift punishment will deter individuals from offending. Volumes have been written on the difficulties of measuring these concepts (see Von Hirsch et al., 1999, for a recent review), and from whose perspective, not to mention how to measure the outcome of deterrence. How does one measure what people do not do (in the case of general deterrence, do not offend) while also considering the counterfactual, or what they would have done if deterrence were not at work?

From a research perspective, therapeutic jurisprudence does not have these theoretical and practical difficulties because the constructs themselves are reasonably concrete and are present. The possible exception to this would be how to define and measure emotional well-being as it relates to therapeutic and antitherapeutic effects, which results in the value conflict previously discussed.

Second, therapeutic jurisprudence has an inherent focus on process and the link to outcomes. This is useful from both a research and a practice perspective. In the research enterprise, from the outset, this sets up the boundaries of the research hypotheses or research questions themselves. Among the most commonly researched questions is: How does the judge or authority figure interact with defendants or how do plaintiffs impact the emotional well-being of those involved? Susman (1996) looked at whether psychiatric patients were equally satisfied across two methods of dispute resolution for mandatory medication. Anderson and her colleagues (1996) examined how therapists integrated the mandatory child abuse reporting laws, and how it affected their interactions with clients. Chase and Hora (2000) flipped this question around and asked whether judicial satisfaction varied across specialized court judges who did and did not use therapeutic jurisprudence. Holmberg and Christianson (2002) analyzed the perceptions of convicted murderers and sexual offenders and linked these attitudes to how likely offenders were to deny or admit their behavior during police interrogation.

Therapeutic jurisprudence suggests that the process itself has meaning and may affect outcomes, and therefore deserves consideration. From a theoretical standpoint therapeutic jurisprudence suggests that how the process occurs may have meaning for the outcomes or consequences of the process (through how legal rules, legal procedures, and legal actors are experienced). Social science research has the task to prove this.

A third aspect of therapeutic jurisprudence, of interest to social science researchers, is its inherent focus on the context of the legal process and the ramifications this has for research methodology. The focus on context also allows the multiple units of analysis suggested by the constructs, from the micro-level interactions between legal actors, to the macro-level interaction between a set of legal rules or procedures and well-being and, ultimately, law reform (Wexler, 1995). This has implications for the creative use of an array of research methodologies. Research questions can lend themselves to strictly quantitative methodologies to explore questions one construct at a time. For example, Susman (1996) used an instrument measuring aspects of procedural justice developed by Tyler (1992) to assess whether patients who refused medication felt they were treated fairly in two contrasting dispute resolution methods.

Any number of well-being measures could be used to analyze the well-being of patients, defendants, victims, attorneys, or judges as an outcome on its own. Qualitative methods can also be utilized to look at one construct at a time or multiple constructs (Petrucci, 2002). Semi-structured and open-ended interviews have been used in several therapeutic jurisprudence studies (Anderson et al., 1996; Poythress and Brodsky, 1996; Zito et al., 1993). Document analysis could also be used to take a more macro-level look at how legal rules or legal procedures affect outcomes by analyzing case records and court decisions. Zito et al. (1993) reviewed official records to analyze the administrative process conducted when patients refused medication. Poythress and Brodsky (1996) examined hospital release records as evidence for change in hospital procedure after a lawsuit. A comprehensive analysis of the process and outcomes could be accomplished through a mixed methodology such as a case study that permits multiple units of analysis (Yin, 1993), or through the use of quantitative or qualitative methods on their own.

From an epistemological stance, through its emphasis on context, therapeutic jurisprudence can be firmly placed within several current context-focused frameworks. Based on their work in experimental psychology, Rosenthal and Rosnow (1991) argue that human behavior is complex and embedded in the context in which it takes place, making it difficult for one theory or method to provide a complete explanation of a phenomenon. Pluralistic theories and methods are needed to fully understand and explain behavior. They locate their point-of-view within the philosophical framework of contextualism, based on Pepper's work (1942, 1967). Contextualism accepts that behavior is active and always changing. The researcher is seen as an active participant. The meaning of an event is linked to the context in which it occurs, making multiple methods a natural outgrowth of this philosophy.

Education researchers Tashakkori and Teddlie (1998) place their mixed model work within the philosophical framework of pragmatism, based on the work of several authors (see Cherryholmes, 1992; Greene, 1994; House, 1994; Howe, 1988; Murphy, 1990 and Rorty, 1982—as cited in Tashakkori and Teddlie). The research question is the primary determinant of the methods used. Tashakkori and Teddlie see pragmatism as the best philosophical fit for mixed methods because it avoids the 'either-or' approach of positivism and constructivism and advocates the use of the best methods to best answer the research question.

Additional frameworks have been developed by various scholars to support the use of mixed methods with a concomitant emphasis on context. Examples include fal-liballistic realism (Manicas and Secord, 1983), scientific realism (Kazi, 2000), and a developmental approach (Bronfenbrenner, 1979). Therapeutic jurisprudence fits well within each of these.

A fourth inherent quality of therapeutic jurisprudence is that it provides an invitation to look at the legal process from a multitude of perspectives often previously overlooked. It broadens the 'who' of who is studied, to include each person directly or indirectly involved in the legal process itself. In many cases, this means considering those who previously had no voice, such as involuntary patients (Perlin, 2000) and victims of domestic violence (Winick, 2000a). Or it can include a practitioner, a criminal defendant, a victim, or society as a whole. Empirical research, thus far in therapeutic jurisprudence, has focused mostly on how mental health professionals and plaintiffs perceive an aspect of the legal process (Anderson et al., 1996; Ferencz and McGuire, 2000; Greer, O'Regan and Traverso, 1996; Kennedy, 2001; Poythress and Brodsky, 1996; Susman, 1996; Zito et al., 1993). Interestingly, conflict between practitioners' and clients' views within the same study have already emerged (Ferencz and McGuire, 2000; Susman, 1996; Zito et al., 1993), bringing what might be important differential perspectives in plain view for reform.

Therapeutic jurisprudence provides the opportunity to expand our research subject pool beyond the much-studied lawyers, judges, and juries, to include a broader array of practitioners directly and indirectly involved with the legal process itself. This allows interdisciplinary discussion as the needs of the legal process and the medical or mental health fields (or juvenile justice, corrections, social work, substance abuse treatment, etc.) are illuminated.

It is just as important to gather information from the people being 'acted upon' by the legal system itself—defendants/plaintiffs, victims/respondents, and their families. Holmberg and Christianson's (2002) study looks at the perceptions of 83 men convicted of murder or a sexual offense. The work in procedural justice (Thibaut and Walker, 1978; Tyler, 1992) easily integrates within a therapeutic jurisprudence approach (Greer et al., 1996; Kennedy, 2001; Susman, 1996) and insists on gaining the perspective of the defendants themselves due to the constructs of the theory itself (having voice and participation). Winick (1999) uses procedural justice in the realm of civil commitment hearings. To increase the therapeutic effects of the commitment process, Winick emphasizes the importance of patients being able to tell their story in an environment that supports dignity, trust, and respect. He outlines how the roles of the legal actors involved in the commitment process can be changed to adhere to the principles of procedural justice not only to enhance a patient's experience of the commitment process, but to contribute to the patient's acceptance of the outcome of the hearing. Therapeutic jurisprudence also emphasizes the importance of how victims perceive the legal process, allowing a merging with the growing victimology research (Wright, 1996), and placing a much needed focus on how the legal system responds to victims. The well-being of families can also be considered. Borrowing on procedural justice, Kennedy (2001) looked at 226 family members who were also petitioners in an involuntary commitment hearing to see if their perceptions of fairness affected their willingness to care for their committed family member after the hearing. As can be seen, the 'who' of whose emotional well-being is considered can be quite broad.

Finally, therapeutic jurisprudence provides a rationale for the integration of behavioral science research into the legal process. Through its inherent focus on process, it permits and even encourages discussion of constructs of interest to social science research and practice. These include areas such as compliance (Wexler, 2000), rehabilitation (Wexler, 2001), coercion (Winick, 1999; Winick and Wexler, in press), denial (Winick, 2000a, 2000b), and relapse prevention (Wexler, 2000). For example, in his analysis of teen courts, Wexler (2000) combines a cognitive-behavioral approach with a relapse prevention plan. With the help of a probation officer or social worker, youths develop a plan that identifies how they will recognize a high-risk situation in the future, and what they will do about it if faced with it. The youth's ability to develop the plan is suggested as one piece of information for release decisions.

Therapeutic jurisprudence supports the use of these constructs as a means to accomplish emotional well-being. Social science research is well poised to take a closer look at how these constructs can be operationalized and what influence they have on the process and outcomes. Thus, therapeutic jurisprudence, and the research and practice enterprise, share common goals of achieving a court process that is as therapeutic as possible for those going through it. Social science research and practice can provide the operationalization of the constructs suggested by therapeutic jurisprudence.

We've described the ways that social science research can be useful to a therapeutic jurisprudence approach, but is there also a role that social science researchers can play in the development and implementation of therapeutic jurisprudence? One of the most important roles that social science research can play in therapeutic jurisprudence is empirical support or disproof of the theory itself. This involves observing, documenting, and explaining how therapeutic jurisprudence operates in practice within legal forums.

Therapeutic jurisprudence researchers can also contribute to the definition and measurement of what differentiates a therapeutic jurisprudence approach from other approaches. The development of measurable process components would be a natural consequence. This can serve to both disentangle competing theoretical approaches as well as to provide a sophisticated triangulation of theoretical mechanisms. Specifically, how do judges carry out therapeutic jurisprudence in their day-to-day interactions with defendants and victims, and how does this differ from a judge in a specialized court who does not subscribe to therapeutic jurisprudence? Are there differences in outcomes across different judicial approaches? What does a lawyer utilizing therapeutic jurisprudence actually do or say in his or her interactions with clients? Are there measurable differences between a lawyer using a therapeutic jurisprudent approach and one not using it? How is a therapeutic jurisprudence approach different from deterrence? Social science research can begin to name and measure these factors, with input from those actually 'doing' therapeutic jurisprudence in their day-to-day practice. This process of disentangling and triangulating competing theories is important if we are to understand which approach brings about the most effective outcomes.

Another key role for social science research is to develop measurable outcomes of therapeutic jurisprudence. This would include analysis of emotional well-being as well as legal reform as the outcome. Emotional well-being is fertile ground in social science, with a multitude of directions in which to go, depending on who is considered: an individual, a family, a community, or society at large (Kress, 1999). It is not intended that any one particular outcome measure be declared 'the one and only', but that a constellation of measurable outcomes be developed that reflect various units of analysis. These outcomes can then be linked to specific aspects of therapeutic jurisprudence (legal actors, rules, procedures).

In short, therapeutic jurisprudence and social science research can work in tandem to explore and document how therapeutic jurisprudence is practiced, how implementation is defined in operationalizable constructs, and in linking these constructs to outcomes. This combination of tasks will allow empirical research to make its most important contribution: to achieve meaningful law reform that is carefully thought out from multiple perspectives, and to contribute to best practices for practitioners working in the legal arena.

0 0

Post a comment