NCJ Number
204325
Journal
University of Cincinnati Law Review Volume: 71 Issue: 1 Dated: 2002 Pages: 115-132
Date Published
2002
Length
18 pages
Annotation
This article discusses the therapeutic jurisprudence brief, and presents in full a reprinting of the first such therapeutic jurisprudence amicus brief filed in an appellate court dealing with whether juveniles facing civil commitment have a right to counsel.
Abstract
Therapeutic jurisprudence is an interdisciplinary approach to legal scholarship that uses insights from the behavioral sciences to improve the understanding of how law functions. It seeks to provide a foundation for law reform designed to reshape legal rules and practices in ways that minimize their harmful effects and maximize their potential to enhance the emotional well-being of the individual and society. Early therapeutic jurisprudence was primarily academic in nature; more recent work has focused on the roles played by lawyers and judges as therapeutic agents. A new area in therapeutic jurisprudence work is the therapeutic jurisprudence amicus brief that can be submitted to address issues of public importance. Such briefs can target a particular issue, advance a specific contention, or highlight a body of work that may not come to the court’s attention. The insights set forth in such briefs can have an enormous impact on a court’s decision. The therapeutic jurisprudence amicus brief presented in full in this article was filed in a case raising an important issue in the juvenile/mental health system. The question related to whether children in the custody of the Florida Department of Children and Family Services should receive a hearing when that agency, functioning as foster parent, seeks to commit them to a mental hospital on the ground that they are mentally ill and in need of hospitalization. The Florida Supreme Court had previously rejected a constitutional and statutory challenge to the absence of a hearing in this context, but suggested that the Florida Juvenile Rules Committee consider the issue and propose a rule dealing with the procedure that should be followed in such cases. The committee split on the extent of the procedural protections that should be afforded, with the majority proposing a rule that juveniles would receive a hearing at which they would be represented by guardians ad litem, while the minority filed a dissent arguing that representation should be by counsel. The Florida Supreme Court invited interested members of the public to provide comments on the proposed rule. The authors of this article filed the brief because they felt that if the views of the majority of the committee were accepted, they would have an antitherapeutic effect. The authors believed that if the minority proposal was adopted, it could have positive effects for the psychological functioning of the juveniles involved and could improve the chances that any hospitalization and treatment ordered would be more effective. Following briefing and oral argument, the Florida Supreme Court rendered its decision on October 25, 2001, agreeing with the author’s position set forth in the brief, and adopting the minority recommendation that counsel should be provided, and quoting extensively from the brief. This shows that the brief had an impact on the court’s decision, and demonstrates the value of submitting similar therapeutic jurisprudence amicus briefs in a variety of other proceedings.