Presentation on theme: "Turning Mr. Hyde into dr. Jekyll Effective sentencing advocacy"— Presentation transcript:
1Turning Mr. Hyde into dr. Jekyll Effective sentencing advocacy Vickie Piontkowski, MSW, JD, LCSWFederal Criminal Law & Sentencing Law SeminarOctober 31, 2014
2Defendant is a radicalized Islamic jihadist who dangerously rose to an influential position on an online jihadist forum with the desire to radicalize others and drive them to extreme violence against Americans in the United States. Defendant proved his bona fides as a person determined to violence when he attempted to shoot FBI agents who attempted to contact him, biting one of them as they attempted to restrain him from reaching a firearm that he had on his person, just as he had exhorted others to do when online. Defendant is a severe danger to the community and his incarceration is imperative for both the safety of the United States as well as his own rehabilitation.
3Learning Objectives Reframe the narrative Develop the characters Offer alternate endingsTo effectively advocate for our clients at sentencing, we concentrate on 3 tasks:This is how we’re going to frame our discussion today.
4CRIMINOGENIC FACTORS Reframe the Narrative Criminal History Family DiscordAntisocial Personality Unstable HousingAntisocial Peers Lack of Work/SchoolingSubstance Abuse Poor Use of Leisure TimeThis is the language the prosecution uses, and frequently the probation office, too. These are the big, scary risk factors established by empirically based research that proves our clients are seriously bad dudes. And, taken out of context, they can look really scary. Our job is to determine the facts of our clients’ lives, and use those facts to reframe the narrative.
5CRIMINAL HISTORY Expulsion from school Juvenile detention Arrests ConvictionsProtection from abuse ordersDisciplinary infractions while incarceratedThese are the details the government will cite as facts to support why our clients should go to jail forever. But the facts behind these details will help you reframe the narrative.
6Reframe the Narrative Young Family pressure Peer pressure Relationship pressureTargeted policingProtectionRacismBad legal adviceOur client didn’t have a criminal history. But plenty of other clients have because they were:Young and stupidImpressing their friendsImpressing a girlThe police had it out for the clientThe client took a plea to get out of jailThe person who brought the charges, filed the PFA is mentally unstableThe client fought in prison for his own protection.
7ANTISOCIAL PERSONALITY ImpulsiveAggressiveViolentDangerousHostileDefiantDid the government think our client was antisocial?How do we know?
8Reframe the Narrative Mental illness Autism spectrum disorder Physical illnessHearing impairmentIntellectual disabilityPTSDDevelopmental disabilityIntoxicatedBrain injuryHighIn fact, our client has Asperger’s. He was arrested by two plain clothes policemen in a Burger King parking lot. He was sitting in the passenger’s side of his mother’s car while she went in to the bathroom. He was traveling with her to what he thought was his grandmother’s deathbed. While he waited, two men walked up to his car, yanked open his car door and the door behind him, got into the car, put their hands on him, and yelled at him not to fight.
9ANTISOCIAL PEERS Gang membership Known criminals Drug abusers/dealers Radicals/terroristsDid our client have antisocial peers?
10Reframe the Narrative Meeting emotional needs SafetyPrideFriendshipRespectLoveLoyaltyBelongingFamilyConsistencyResilienceOur client had no friends. None. Until he found this online community who respected what he knew about Islam. They were always available to talk, they asked him his opinion, they laughed at his jokes. For the first time in his life, he found somewhere he felt he belonged.
11SUBSTANCE ABUSE Drug or alcohol abuse or dependence History of treatment non-complianceMultiple relapses/positive drug tests while on supervisionOur client never drank or used drugs because his mother was alcohol dependent and his brother. But how do we explain the continued drug or alcohol use of other clients?
12Reframe the Narrative Barriers to treatment accessibility Lack of awarenessInsuranceIdentificationGeographyChild careTransportationWorkCost
13Reframe the Narrative Barriers to treatment effectiveness Gender specific servicesIntellectual disabilityTrauma informedAutismCultural competencyPhysical disabilityIlliteracy/learning disabilityCo-occurring disorders
14FAMILY DISCORD Abuse: physical, mental, verbal, sexual Neglect Financial strainOur client’s father was a conspiracy theorist who lived practically off the grid on a rural farm. He didn’t believe in modern medicine or prescription drugs. He videotaped our client shooting pumpkins and posted the video to YouTube. Mom was alcohol dependent, clinically anxious, and she hated Dad. Client’s brother flunked out of school while abusing party drugs. Again, it looks bad, right?
15Reframe the Narrative Child care Elder care Child support Pooled resourcesSocial isolationOnce in jail, our client could reflect with insight on each of his family members’ unhealthy choices. But he stuck around to help care for his elderly grandparents. Other clients stay to maintain access to their children, because their family is their only source for child care, because they can’t afford to move out on their own, or because their romantic partner has threatened physical harm if they leave.
16UNSTABLE HOUSING Kicked out by roommates/family Evicted by landlordKicked out by roommates/familyUnsafe living conditionsUnsafe neighborhoodCouch surfingLiving in carHomelessOur client bounced back and forth between Mom and Dad’s house. He spent a few months across the state at college, but he came back home after, among other things, his apartment was cited for having become a health hazard.
17Reframe the Narrative Left abusive relationship Maintaining access to childrenResidency restrictionsHousing program lost fundingWaitlistPovertyWhen our client stayed with Mom, he took his meds and attended community college. But when her drinking, and his brother’s drug use, overwhelmed him, our client went to live with Dad. Dad’s house was peaceful, but the last time he stayed with Dad, Dad encouraged him to stop taking his medication and allowed him to spend hours a day online.
18LACK OF WORK/SCHOOL Dropped out of high school No GED Never worked Poor work performanceMultiple terminationsNo marketable skillsOur client dropped out of school, dropped out of college and never held a job.
19Reframe the Narrative Bullying/physical safety Pregnancy Child care Substance abuseMental health conditionTransportationIlliteracy/learning disabilityPhysical disability/physical health conditionElder care/family obligationsOur client had so many social problems at school, his parents decided to home school him at 13 years old. They split up soon after and client’s mother encouraged her very intelligent son to take the GED and register for college classes. Now the boy who couldn’t socially navigate junior high was sitting in classes with year olds who thought he was weird. He spent all his time between classes in online chatrooms.
20POOR USE OF LEISURE Television Smoking/drinking Hanging out Weird hobbiesThe government, and the media, found photos of our client online dressed in WWII military uniforms. They also found YouTube videos of him shooting pumpkins in the woods.
21Reframe the Narrative Mental illness Physical illness Intellectual disabilityBrain injuryAutism spectrum disorderChild careTransportationOur client couldn’t hold a regular job because even the interview was too socially challenging for him, so he bought and sold stuff on e-bay. He was wearing the military uniform to show potential buyers what it looked like. He also bought, restored and sold old rosaries. And he studied bees.Regarding the pumpkins, we found over 10,000 videos online of people shooting various gourds.
22Develop the Characters Develop an effective working relationship with your clientInterview purposefully to obtain mitigating informationIn order to reframe the narrative, we must develop the characters in our client’s story. To do that, we proactively create a safe, trusting relationship with them. We ask them respectful but direct questions. And we actively listen when they speak.
23Develop Effective Relationships Client-centered theory (Carl Rogers)- Congruence (genuineness)- Unconditional positive regard- EmpathyThe History of the Person-Centered Approach;
24Address and Remove Barriers Starts with the first meetingSelf reflectionRoom set up and introductionSOLER skills (Gerard Egan)Discuss cultural competencySquare shoulders to clientOpen body postureLean slightly forwardEye contact, maintain without staringRelax
25Set Rules Don’t interrupt Open and honest Pay attention Begin each meeting with check-inEnd each meeting with review of next steps
26Speak Carefully Match client’s conversational speed Use value-neutral languageMatch vocabulary to client’s ability to understandTest comprehensionDrug use v. drug problem Five years v. short time v. long timeYou’ve been indicted v. You’ve been charged with a crimeTell me what I just said using your own words.
27Question Thoughtfully Use open-ended questions to encourage greater discussionUse closed-ended questions to elicit specific informationAsk uncomfortable questions directlyClarify vague answersAlternative questions with requests
28Reply Empathically Practice reflective listening It sounds like (what happened) and you felt (emotion). Is that right?Acknowledge painHold the silence
29Behave Purposefully Meet the client where he/she is Model body languageBe willing to change your strategyAsk the client how he/she wants to proceed
30Offer Alternate Endings Confirm treatment needExplain barriers to treatmentIdentify community resources
31Confirm Treatment Need Collateral witnessesPrior attorney recordsMedical recordsGovernment assistance recordsSchool recordsPrior treatment recordsChild protectiveservices recordsExpert evaluationCourt recordsWhy does your client behave in an anti-social way? Is there a documented history of mental health symptoms, substance abuse, child abuse or neglect? Has the client survived a trauma, or compound traumas? Was there a head injury?
32Confirm Treatment Need National Institute of Mental HealthAmerican Psychiatric AssociationAmerican Psychological AssociationSubstance Abuse and Mental Health Service AdministrationAdult Children of AlcoholicsIf you need to cite literature explaining why treatment is appropriate, or what type of treatment is required, use nationally recognized sources.
33Explain Barriers to Treatment Barriers to treatment accessibility Lack of awarenessInsuranceIdentificationGeographyChild careTransportationWorkCost
34Explain Barriers to Treatment Barriers to treatment effectiveness Gender specific servicesIntellectual disabilityTrauma informedAutismCultural competencyPhysical disabilityIlliteracy/learning disabilityCo-occurring disorders
35Identify Community Resources State/county public defender officesGovernment departmentsGovernment assistance officesNon-profitsDisability rights organizationsYou don’t have to know every treatment provider in your district. But it will help to know one or two people who are well networked in the treatment community.
36Identify Community Resources UniversitiesCommunity leadersHouses of worshipPeer support groupsClinical treatment is great. Clinical treatment plus a mentor and a peer support group with regular meetings is even better.
37nationalreentryresourcecenter.orgDon’t overlook reentry databases. The nationalreentry resource center contains a directory of state resources that can be good place to start.Can convince some local programs to take federal clients.
38nrepp.samhsa.govFor mental health issues, the Substance Abuse and Mental Health Services Administration has a national registry of evidence based programs and practices. It’s a good place to start.
39Substance Abuse Treatment National Association of Addiction Treatment ProvidersNational Association for Children of AlcoholicsNational Association of Lesbian & Gay Addiction ProfessionalsNational Council on Alcoholism and Drug DependenceAmerican Society of Addiction MedicineNational associations specializing in your treatment need can be tremendously helpful. They can help you locate credentialed treatment providers in your district, point you to the latest supporting literature, and send out specific questions to their members listserve.
40Mental Health Treatment National Alliance on Mental IllnessMental Health AmericaAmerican Mental Health Counselors AssociationNational Mental Health Consumers’ Self- Help ClearinghouseNational Association of Social WorkersNational Council for Behavioral HealthNAMI is a great source of information for locating peer and family support. Showing a judge that your client’s family is now involved in the treatment plan is a significant protective factor against recidivism.
41Mental Health Treatment Depression and Bipolar Support AllianceInternational Society for Traumatic Stress StudiesSchizophrenia and Related Disorders Alliance of AmericaAnxiety and Depression Association of AmericaSidran InstituteKnow your judge. Does he or she understand that depression/anxiety/schizophrenia/trauma affects different people differently? If not, explain what your client’s symptoms mean.
42Sex Offender Treatment Association for the Treatment of Sexual AbusersAmerican Association of Sexuality Educators Counselors and TherapistsAmerican Board of SexologySociety for Sex Therapy & ResearchThese folks are just plain great. They can help locate treatment providers and educate us about how to talk to our clients.
43Veterans Treatment Wounded Warrior Project Veterans of Foreign Wars of the USVeterans Justice OutreachThe Soldiers ProjectVeterans Crisis LineThere are comprehensive, holistic services available and specific to veterans. Services are available in person, by phone and online.
44Autism Spectrum Disorders Treatment US Autism & Asperger AssociationNational Autism AssociationAutism SocietyAutism NowAutism SpeaksMore and more of our clients are adults who are on the Autism Spectrum but have never before been diagnosed. Diagnosis can go a long way toward explaining questionable behavior. Community support services can go a long way toward preventing future mishaps and give the judges a sense of increased public safety.