“Where the home in the valley meets the damp dirty prison”: A human rights perspective on therapeutic jurisprudence and the role of forensic psychologists in correctional settings☆
Introduction
The correctional system is ultimately a legally coerced environment. In this instance, the forensic psychologist is a specialist, as defined by the American Association for Correctional Psychology1, competent in correctional philosophy and systems, offender management, report writing, treatment to reduce re-offending, and outcome research rather than only providing mental health services within corrections (AACP, 2000). Forensic psychologists working within the correctional system have a unique dual role in balancing offender rights and community rights. Put another way, forensic psychologists work with the offender but for corrections. Of numerous roles fulfilled by forensic psychologists, two that are relevant to this article can be described as the role of treatment provider and the role of organizational consultant (see (American Association for Correctional Psychology, 2000, Correia, 2009). As treatment provider, forensic psychologists engage in assessment (of mental health, risk of re-offending, criminogenic needs, parole, and malingering), treatment (of substance abuse, sexual and violent offending, values and attitudes, and suicide prevention, individually and in groups), and management (of case coordination, institutional violence and sexual assault, crisis intervention, and staff selection). As consultant, forensic psychologists promote staff training, a humane and safe environment, positive organizational culture and so on. As will be demonstrated, these dual roles become anti-therapeutic in coercive environments if community rights trump offender rights.
The dual role experienced by forensic psychologists provides a power imbalance exploitable for unethical purposes such as: failing to represent multiple interests and weigh community, social, and political values (i.e., a normative judgment that community rights outweigh offender rights); causing harm to the offender (an extreme case being assessing competence for execution); applying empathy skills to elicit information the offender may not wish to disclose; and avoiding legal protections regarding justice and fairness (see Perlin, 1991b). From a human rights perspective, duty-bearers are obliged to actively meet, or to at least not actively restrain, the human rights of rights-holders such as offenders (Ward & Birgden, 2007). Therefore, forensic psychologists are duty-bearers obliged to support positive human rights (e.g., deliver therapeutic services) and negative human rights (e.g., not interfere with free speech). In corrections it is preferable that the role of forensic psychologists is therapeutic rather than anti-therapeutic. As will be seen, therapeutic forensic psychologists attempt to balance the role conflict between offender rights and community rights.
In offender rehabilitation, “the field of forensic psychology has a role to play by becoming a therapeutic agent that is more attuned to the law and legal context” (Elwork, 1992, p. 176). Therapeutic jurisprudence (TJ) presents a new model by which we can assess the ultimate impact of the law on offenders, studying the role of the law (and the role of forensic psychologists) as therapeutic agents, recognizing that substantive rules, legal procedures, and roles may have either therapeutic or anti-therapeutic consequences, and questioning whether such rules, procedures, and roles can or should be reshaped so as to enhance their therapeutic potential, while not subordinating due process legal principles (see Wexler, 1990, Winick, 1997). To date, there has been little TJ analysis of the role of forensic psychologists in corrections (although see Cohen & Dvoskin, 1993 regarding suicide prevention, and Birgden, 2002b, Birgden, 2004a, Birgden, 2004b, Birgden, 2008, Dickey, 2008, McGuire, 2003 regarding offender rehabilitation). This article aims to consider the dual role of forensic psychologists within corrections through the specific lens of international human rights laws and a recent universal declaration of ethical principles for psychologists; differentiating between ethical and legal obligations owed to the offender and the community (AACP, 2000).
This article has three sections. The first section provides an overview of international human rights laws as applied to corrections and warns that serious ethical problems may arise if such laws are violated. To demonstrate the potential problem, an example is provided of the role of psychologists in the torture and interrogation of military detainees in the US; it is argued that the American Psychological Association (APA) weighted the balance toward community rights (as organizational consultant) and against detainee rights (as treatment provider), particularly because the organization initially chose to disregard international law. The second section describes universal ethical principles which ought to assist forensic psychologists in corrections to balance offender rights and community rights. However, when international human rights law and ethic codes conflict, clear guidelines to manage conflict are currently lacking as human rights are not mentioned in enforceable sections. If ethics codes were to be underpinned by enforceable universally shared human values regarding dignity and rights, such conflicts are less likely to arise. Meanwhile, forensic psychologists cannot function independently from the law. TJ as a legal theory can assist forensic psychologists to balance offender rights and community rights without trumping the law. The third section proposes that the legal theory of TJ can clarify the role of forensic psychologists in promoting the therapeutic effects of the law to actively meet the human rights of offenders and provides a “checklist” for forensic psychologists to compare against universal principles. Finally, we conclude that TJ-minded forensic psychologists can reconcile the dual role of treatment provider and organizational consultant without violating the overarching dignity of the clients or the community while attending to the core values of freedom and well-being of offenders. In this way, both legal and ethical obligations can be met.
Section snippets
International human rights law and corrections
Human rights are necessary for all individuals; human rights violations occur when persons are treated as objects or as a means to others' ends (Ward & Birgden, 2007). Offenders have enforceable human rights (Birgden & Perlin, 2008). The Vienna Declaration and Program of Action (1993) and the Universal Declaration of Human Rights (1948) recognized that inherent dignity and inalienable rights of all individuals is the foundation of freedom, justice, and peace. Through global covenants,
International human rights law violations
A stark example of psychologists failing to support human rights is the involvement in torture and interrogation of suspected terrorists carried out during the years of the Bush Administration in detention centers in Guantánamo Bay, Abu Ghraib, Bagram and “black sites” operated by the CIA in Europe and elsewhere (Costanzo et al., 2007, Glenn, 2007, Soldz, 2008, Soldz, 2009)2
Ethical principles for forensic psychologists
In addition to international human rights law, a Universal Declaration of Ethical Principles for Psychologists was recently adopted by the International Union of Psychological Science (IUPS, 2008). This document states that ethics is the core of psychology and provided a set of aspirational moral principles to guide codes of ethics and a universal standard against which to evaluate the ethical and moral development of the profession. The Declaration describes ethical principles based on shared
Therapeutic jurisprudence
Forensic psychologists cannot function in isolation from the law, including international human rights law. As previously discussed, TJ is a conceptual framework developed by Professors David Wexler and Bruce Winick with a particular concern for the psychological well-being of individuals who are in contact with the law (including offenders). TJ perceives that the law “…can function as a kind of therapist or therapeutic agent. Legal rules, legal procedures, and the roles of legal actors (such
A TJ role for forensic psychologists
As discussed, ethical forensic practice must be understood in the context of international human rights law and international ethical codes of practice; preferably combined. In addition, a TJ approach requires forensic psychologists to understand the law and attempt to apply it to therapeutic effect. What does therapeutic mean in the context of TJ and corrections? To date, TJ has not clearly defined the concept (see Kress, 1999) and it is unclear whether social scientists, legal actors,
Conclusion
If forensic psychologists do not recognize that the business of corrections is to promote and monitor respect for human rights and prevent, detect, and remedy human rights violations, systemic abuses of power will be inevitable (Zinger, 2006). The role of psychologists in the interrogation (and perhaps torture) of detainees is a timely reminder of the slippery ethical slope that can arise for those working in coercive environments if the role for community protection (as organizational
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- ☆
This lyric is found in Bob Dylan's song, A Hard Rain’s A-Gonna Fall (1963). It appears in this verse:
Oh, what'll you do now, my blue-eyed son?
Oh, what'll you do now, my darling young one?
I'm a-goin' back out 'fore the rain starts a-fallin',
I'll walk to the depths of the deepest black forest,
Where the people are many and their hands are all empty,
Where the pellets of poison are flooding their waters,
Where the home in the valley meets the damp dirty prison,…Although the song is as apocalyptic as any in Dylan’s songbook, one of the most respected commentators concludes that, in spite of the pictures of “devastation” that populate the song, in the end there are “suggestions of hope” (Trager, 2004, p. 235). We offer this article in the same spirit.