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Turning Mr. Hyde into dr. Jekyll Effective sentencing advocacy

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Presentation on theme: "Turning Mr. Hyde into dr. Jekyll Effective sentencing advocacy"— Presentation transcript:

1 Turning Mr. Hyde into dr. Jekyll Effective sentencing advocacy
Vickie Piontkowski, MSW, JD, LCSW Federal Criminal Law & Sentencing Law Seminar October 31, 2014

2 Defendant 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.

3 Learning Objectives Reframe the narrative Develop the characters
Offer alternate endings To effectively advocate for our clients at sentencing, we concentrate on 3 tasks: This is how we’re going to frame our discussion today.

4 CRIMINOGENIC FACTORS Reframe the Narrative
Criminal History Family Discord Antisocial Personality Unstable Housing Antisocial Peers Lack of Work/Schooling Substance Abuse Poor Use of Leisure Time This 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.

5 CRIMINAL HISTORY Expulsion from school Juvenile detention Arrests
Convictions Protection from abuse orders Disciplinary infractions while incarcerated These 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.

6 Reframe the Narrative Young Family pressure Peer pressure
Relationship pressure Targeted policing Protection Racism Bad legal advice Our client didn’t have a criminal history. But plenty of other clients have because they were: Young and stupid Impressing their friends Impressing a girl The police had it out for the client The client took a plea to get out of jail The person who brought the charges, filed the PFA is mentally unstable The client fought in prison for his own protection.

Impulsive Aggressive Violent Dangerous Hostile Defiant Did the government think our client was antisocial? How do we know?

8 Reframe the Narrative Mental illness Autism spectrum disorder
Physical illness Hearing impairment Intellectual disability PTSD Developmental disability Intoxicated Brain injury High In 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.

9 ANTISOCIAL PEERS Gang membership Known criminals Drug abusers/dealers
Radicals/terrorists Did our client have antisocial peers?

10 Reframe the Narrative Meeting emotional needs
Safety Pride Friendship Respect Love Loyalty Belonging Family Consistency Resilience Our 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.

11 SUBSTANCE ABUSE Drug or alcohol abuse or dependence
History of treatment non-compliance Multiple relapses/positive drug tests while on supervision Our 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?

12 Reframe the Narrative Barriers to treatment accessibility
Lack of awareness Insurance Identification Geography Child care Transportation Work Cost

13 Reframe the Narrative Barriers to treatment effectiveness
Gender specific services Intellectual disability Trauma informed Autism Cultural competency Physical disability Illiteracy/learning disability Co-occurring disorders

14 FAMILY DISCORD Abuse: physical, mental, verbal, sexual Neglect
Financial strain Our 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?

15 Reframe the Narrative Child care Elder care Child support
Pooled resources Social isolation Once 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.

16 UNSTABLE HOUSING Kicked out by roommates/family
Evicted by landlord Kicked out by roommates/family Unsafe living conditions Unsafe neighborhood Couch surfing Living in car Homeless Our 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.

17 Reframe the Narrative Left abusive relationship
Maintaining access to children Residency restrictions Housing program lost funding Waitlist Poverty When 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.

18 LACK OF WORK/SCHOOL Dropped out of high school No GED Never worked
Poor work performance Multiple terminations No marketable skills Our client dropped out of school, dropped out of college and never held a job.

19 Reframe the Narrative Bullying/physical safety Pregnancy Child care
Substance abuse Mental health condition Transportation Illiteracy/learning disability Physical disability/physical health condition Elder care/family obligations Our 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.

20 POOR USE OF LEISURE Television Smoking/drinking Hanging out
Weird hobbies The 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.

21 Reframe the Narrative Mental illness Physical illness
Intellectual disability Brain injury Autism spectrum disorder Child care Transportation Our 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.

22 Develop the Characters
Develop an effective working relationship with your client Interview purposefully to obtain mitigating information In 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.

23 Develop Effective Relationships
Client-centered theory (Carl Rogers) - Congruence (genuineness) - Unconditional positive regard - Empathy The History of the Person-Centered Approach;

24 Address and Remove Barriers
Starts with the first meeting Self reflection Room set up and introduction SOLER skills (Gerard Egan) Discuss cultural competency Square shoulders to client Open body posture Lean slightly forward Eye contact, maintain without staring Relax

25 Set Rules Don’t interrupt Open and honest Pay attention
Begin each meeting with check-in End each meeting with review of next steps

26 Speak Carefully Match client’s conversational speed
Use value-neutral language Match vocabulary to client’s ability to understand Test comprehension Drug use v. drug problem Five years v. short time v. long time You’ve been indicted v. You’ve been charged with a crime Tell me what I just said using your own words.

27 Question Thoughtfully
Use open-ended questions to encourage greater discussion Use closed-ended questions to elicit specific information Ask uncomfortable questions directly Clarify vague answers Alternative questions with requests

28 Reply Empathically Practice reflective listening
It sounds like (what happened) and you felt (emotion). Is that right? Acknowledge pain Hold the silence

29 Behave Purposefully Meet the client where he/she is
Model body language Be willing to change your strategy Ask the client how he/she wants to proceed

30 Offer Alternate Endings
Confirm treatment need Explain barriers to treatment Identify community resources

31 Confirm Treatment Need
Collateral witnesses Prior attorney records Medical records Government assistance records School records Prior treatment records Child protective services records Expert evaluation Court records Why 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?

32 Confirm Treatment Need
National Institute of Mental Health American Psychiatric Association American Psychological Association Substance Abuse and Mental Health Service Administration Adult Children of Alcoholics If you need to cite literature explaining why treatment is appropriate, or what type of treatment is required, use nationally recognized sources.

33 Explain Barriers to Treatment Barriers to treatment accessibility
Lack of awareness Insurance Identification Geography Child care Transportation Work Cost

34 Explain Barriers to Treatment Barriers to treatment effectiveness
Gender specific services Intellectual disability Trauma informed Autism Cultural competency Physical disability Illiteracy/learning disability Co-occurring disorders

35 Identify Community Resources
State/county public defender offices Government departments Government assistance offices Non-profits Disability rights organizations You 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.

36 Identify Community Resources
Universities Community leaders Houses of worship Peer support groups Clinical treatment is great. Clinical treatment plus a mentor and a peer support group with regular meetings is even better.

37 Don’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.

38 For 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.

39 Substance Abuse Treatment
National Association of Addiction Treatment Providers National Association for Children of Alcoholics National Association of Lesbian & Gay Addiction Professionals National Council on Alcoholism and Drug Dependence American Society of Addiction Medicine National 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.

40 Mental Health Treatment
National Alliance on Mental Illness Mental Health America American Mental Health Counselors Association National Mental Health Consumers’ Self- Help Clearinghouse National Association of Social Workers National Council for Behavioral Health NAMI 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.

41 Mental Health Treatment
Depression and Bipolar Support Alliance International Society for Traumatic Stress Studies Schizophrenia and Related Disorders Alliance of America Anxiety and Depression Association of America Sidran Institute Know 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.

42 Sex Offender Treatment
Association for the Treatment of Sexual Abusers American Association of Sexuality Educators Counselors and Therapists American Board of Sexology Society for Sex Therapy & Research These folks are just plain great. They can help locate treatment providers and educate us about how to talk to our clients.

43 Veterans Treatment Wounded Warrior Project
Veterans of Foreign Wars of the US Veterans Justice Outreach The Soldiers Project Veterans Crisis Line There are comprehensive, holistic services available and specific to veterans. Services are available in person, by phone and online.

44 Autism Spectrum Disorders Treatment
US Autism & Asperger Association National Autism Association Autism Society Autism Now Autism Speaks More 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.

45 In conclusion …

46 Not all Mr. Hydes turn back into Dr. Jekylls …

47 … but not all monsters are scary.

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