Cognitive Restructuring Through Law: a Therapeutic Jurisprudence Approach to Sex Offenders and the Plea Process

Publication year1992
CitationVol. 15 No. 03


Cognitive Restructuring Through Law: A Therapeutic Jurisprudence Approach to Sex Offenders and the Plea Process

Jeffrey A. Klotz(fn*) David B. Wexler(fn**) Bruce D. Sales(fn***) Judith V. Becker(fn****)

Scholars at the University of Arizona and elsewhere are currently developing a fresh approach to mental health law. This approach, known as "therapeutic jurisprudence," studies the role of the law as a therapeutic agent.(fn1)

A new and highly interdisciplinary approach to the law and mental health field, therapeutic jurisprudence suggests that the law itself can be seen to function as a therapist or therapeutic agent. Legal rules, legal procedures, and the roles of legal actors (such as lawyers and judges) may act as social forces that sometimes yield therapeutic or antitherapeutic consequences. Therapeutic jurisprudence seeks "to identify-and ultimately to examine empirically-relationships between legal arrangements and therapeutic outcomes."(fn2)

The therapeutic jurisprudence approach does not argue that therapeutic concerns should supersede other considerations, but only that empirical information from the social sciences can inform legal decision-making and should indeed be taken into account in legal decision-making.(fn3) Within the limits set by principles of justice, therapeutic jurisprudence suggests that the law should be designed to serve more effectively as a therapeutic agent. Naturally, then, therapeutic jurisprudence has something to say about sex offenders and the legal apparatuses that may influence their mental health or behavior.(fn4)

At the University of Arizona, we hope to develop a series of studies that will ultimately examine a variety of empirical issues relating to the law and plea process with respect to sex offenders.(fn5) These studies arise from one particular therapeutic jurisprudence application proposed by David Wexler and Bruce Winick. This Article summarizes the empirical questions raised by Wexler and Winick's theory and suggests how those questions might be empirically analyzed.

A therapeutic jurisprudence approach also raises important empirical questions regarding Washington's Sexually Violent Predators statute(fn6)-the focus of the other papers in this symposium. Later, in Part III, we examine some of those issues, principally: (1) whether the Washington law actually targets the least treatable sex offenders and discourages the treatment of a larger sex offender population, (2) whether the Washington law will encourage guilty defendants to deny their guilt through the plea process, ultimately causing the law to act as an antitherapeutic agent for sex offenders, and (3) whether the Washington statute also provides an incentive for guilty sex offenders to protest their innocence and proceed to trial in an effort to avoid indefinite incarceration, possibly increasing the risk of perjury and extending the period of denial through the trial and appeals process. We hope that our discussion of these issues and the therapeutic jurisprudence perspective presented in the Article will enrich the potential research agenda relating to the Washington law.

I. The Psychology of Sex Offenders and Therapeutic Jurisprudence

There is strong empirical evidence that sex offenders- particularly child molesters-exhibit denial and minimization(fn7) of their behaviors.(fn8) These so-called cognitive distortions(fn9) present a barrier to effective treatment and may themselves be a focus of therapy.(fn10) Therapeutic strategies such as "cognitive restructuring"(fn11) have been developed to treat these distortions.

Cognitive restructuring bascially involves confronting the offender with the evidence of his behaviors or engaging in role reversals(fn12) in which the offender/patient must actively grapple with the evidence of his illicit desires or morally reprehensible behavior. Such treatment is geared toward leading the offenders to "rethink their own cognitions."(fn13)

A therapeutic jurisprudence approach to the sex offense area might ask whether the law, which includes the roles of laywers and judges as well as rules and procedures, has a therapeutic or antitherapeutic impact on sex offenders. Wexler and Winick(fn14) have specifically questioned whether the law in this area promotes cognitive restructuring or instead promotes cognitive distortion, perhaps contributing to psychological dysfunction and criminality.(fn15) It may well be, as Wexler and Winick note, that "many aspects of the justice system are inadvertently geared towards fostering offender denial."(fn16)

Applying the therapeutic jurisprudence approach to the plea process, Wexler and Winick theorize about how various aspects of the criminal plea process may, either in a therapeutic or antitherapeutic fashion, contribute to these cognitive distortions or promote cognitive restructuring.(fn17) This is particularly noteworthy in light of the fact that plea bargains are the dominant method for criminal adjudication.(fn18)

II. Areas of Potential Impact

Several specific aspects of the plea process may affect cognitive distortions or promote cognitive restructuring and are the proper subject of empirical inquiry. For instance, the pleading alternatives available to a sex offender defendant (e.g., guilty pleas, not guilty pleas, and no contest pleas), the type of concessions that might be offered (e.g., relating to sentence leniency or reduced charge), and the judicial process of establishing a factual basis for a plea may all function in a therapeutic or antitherapeutic manner.

A. Pleading Alternatives

At arraignment, a criminal defendant is advised of the formal charge and is typically called upon to enter a plea.(fn19) Ordinarily, the accused may plead "not guilty," "guilty," or "no contest" (nolo contendere).(fn20) Most often, the defendant will initially plead not guilty.(fn21) If the defendant protests his innocence and is unwilling to face the proscribed punishment, the case usually goes to trial, and the trier of fact decides whether the defendant is guilty.(fn22) If the accused, however, ultimately decides to plead guilty in some form, a change of plea hearing is held.

The type of plea ultimately entered may impact a defendant's cognitive distortions. Because sex offenders are usually extremely unwilling to admit guilt, even when the state's evidence is impressive, they often seek to plead "no contest." A no contest plea permits the sex offender to accept the consequences of a conviction without trial and without admitting guilt.(fn23) Indeed, some sex offenders, according to Wexler and Winick, will seek to enter so-called Alford pleas, whereby a defendant is permitted to plead guilty while at the same time protesting his innocence.(fn24)

Acceptance of Alford pleas and no contest pleas may reinforce cognitive distortions and denial, thereby undermining treatment efforts.(fn25) On the other hand, rejecting such pleas might induce defense lawyers to encourage those clients who have no plausible defenses to plead guilty. In essence, this would engage defendants in an exercise of cognitive restructuring that includes role reversal.(fn26) For example, the defense attorney might ask the defendant, "How would you vote if you were a juror in your case?" If research supports the hypothesis that Alford pleas and no contest pleas reinforce cognitive distortions and denial, perhaps judges should be reluctant to accept such pleas(fn27) from sex offenders on therapeutic grounds.

This proposal raises several interesting empirical questions. For instance, are different types of defendants more likely to enter a certain type of plea, and more precisely, are sex offenders more likely than other offenders to enter, or to attempt to enter, no contest or Alford pleas?(fn28) The broader question is whether Alford or no contest pleas actually contribute to a sex offender's cognitive distortions or treatment refusals more than ordinary guilty pleas. In other words, does accepting or denying Alford and no contest pleas affect the existence of cognitive distortions or the acceptance of offers of treatment?

Other questions address the role of the defense attorney. For example, when preparing the defendant for a trial or a plea bargain, does the defense attorney's behavior affect the offender's denial? The defense attorney may possibly engage the client in cognitive restructuring by confronting him with the damning evidence against him or by playing role reversal.(fn29) A researcher could measure such interactions by observing meetings between the attorney and client and then analyzing the content of their interaction. Because the defendants' contacts with others during the time period under study would be uncontrolled, these uncontrolled contacts offer a rival explanation for any finding. On the other hand, consistent causal findings in regard to defendants' cognitive distortions, treatment choices, and treatment outcomes, which differ between attorneys who do and do not engage in cognitive restructuring, would lessen the vitality of the rival hypothesis.

It might be that refusals of nolo and Alford pleas might lead some savvy defense attorneys not to engage their clients in cognitive restructuring. Rather, those attorneys might petition for a change of judge after identifying...

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