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Addressing the Client’s Underlying Problem in The Context of A Criminal Case

Dan Millman Sept. 15, 2015

Criminal conduct is often the result of underlying problems – problems that have existed for a lengthy period of time and have not been brought under control.  Incidents involving violence to another sometimes arise as the result of an escalating feud between friends over money or jealousy between two people involved in an intimate relationship.  Shoplifting and other theft-related offenses sometimes occur due to a desperate financial situation that the defendant believes is hopeless.  Drug-related offenses are often the product of an alcohol or drug addiction that has not been addressed.

There are, of course, several criminal cases out there in which the conduct was not the result of an ongoing, underlying problem but, rather, an isolated instance or the product of a circumstance that is unlikely to present itself in the future.  The focus of this article, however, will be those criminal cases which arise as the result of an underlying problem that has not – and needs to be – addressed.

The Role Of The Criminal Justice System In Addressing Criminal Conduct

When people read about an individual who has been charged with a criminal offense, they often ask “how can someone do something like that?”  This is especially the case with respect to crimes that are more serious in nature.  The question that should often be asked is “what led this individual to do something like this?” They both sound like similar questions but they are different. The first implies that something is wrong with the individual. The second question is geared toward understanding the circumstances that led to the behavior.

The difference between these two questions reflects a dividing view about criminal behavior in our country. Some feel that the circumstances and/or reasons underlying the criminal conduct do not matter and that the criminal justice system exists to simply punish those who do wrong. There are those, on the other hand, who take the position that the circumstances and/or reasons underlying the behavior are important and should be considered in determining the appropriate punishment. While there are individuals that take an extreme approach on one side or the other, I suspect a majority fall in the middle and take the position that, while the reasons should be considered to some extent, the behavior must nonetheless be punished and not excused by the circumstances underlying the conduct.

As an experienced attorney who has both prosecuted and defended a wide array of criminal cases ranging from shoplifting to murder, I can tell you that there is something to be said for both perspectives.  In many instances, criminal conduct emanates from factors in a person’s life that have not been brought under control.  Many out there have trouble believing that criminal offenses can be committed by decent individuals who have fallen on hard times or reacted poorly to a difficult situation.  I can tell you that this is often the case.  In defending a criminal case, it is therefore important to understand the factors that give rise to the individual’s criminal conduct.  By doing so, the lawyer can determine whether there are options available to the client to assist him or her in addressing the underlying problem.

I think it is important to recognize, however, that understanding the behavior does not mean that there should be no consequences. I certainly do not intend to suggest that individuals with a drug addiction or lingering personal problems that have not been brought under control are not required to follow the law. However, assisting the client in addressing the underlying problem will provide the client with better perspective in considering the consequences of his or her actions in future situations.

Treatment And Punishment – Not Mutually Exclusive

The seemingly conflicting goals of addressing the underlying problems behind the criminal behavior, on one hand, and ensuring that the criminal behavior is punished, on the other hand, are not mutually exclusive of one another.

Counseling and/or treatment in the context of a criminal case can be punitive in nature and does not mean that the defendant is walking away with no consequences.  When a defendant in a criminal case undergoes counseling and/or treatment, it is usually part of a sentence issued by a Court, a requirement imposed by the prosecutor as a condition of a plea bargain or a condition of Probation. In any of these instances, the terms of the treatment are mandatory, time-consuming and often costly, depending upon the type of treatment required.  Moreover, in each of these instances, punishment has often already been imposed in conjunction with the treatment, whether it is an additional fine, probation or imprisonment.  Furthermore, in most instances, the defendant is advised that the failure to comply with the terms of counseling and/or treatment will result in jail time, which is something that will remain a continued threat throughout treatment.

On the flip side of the coin, the imposition of punishment itself – whether in the form of fines, probation and/or incarceration – serves to address some of the needs associated with counseling and/or treatment. By receiving consequences for his or her actions, the defendant is forced to recognize the seriousness of the problem he or she is experiencing.  Indeed, one reason behavioral issues are often not resolved is that the individual refuses to recognize there is a problem and therefore fails to take any action to address it. In the context of a criminal proceeding, however, the counseling and/or treatment may be required.

 Both Lawyer And Client Must Recognize The Importance Of Addressing The Underlying Problem

An attorney, of course, is not trained to evaluate and/or address psychological and/or behavioral problems and no attorney should hold himself or herself out in this respect.  A problem such as drug addiction must be primarily addressed with the proper professional.  The attorney’s job in a criminal matter is to provide legal representation on one or more pending charges. However, when representing an individual in a criminal matter whose behavior was the product of an underlying problem such as alcohol or drug addiction, the attorney – in my opinion – has an obligation to advise the client of available treatment options and discuss the importance of addressing the underlying problem with the client.

Failing to address the underlying problem will not serve the client’s long-term needs, no matter what the result of the criminal case. For example, if an alcoholic is charged with DWI and the case is ultimately dismissed, the client’s victory could be short-lived if he or she does not obtain help for the alcohol addiction.  In such an instance, the client will continue to have an alcohol dependency and he or she is likely to drive again while impaired, which could result in a car accident causing serious injury or even death to himself or herself or another.  Even in the absence of such an accident, he or she could wind up right back in your office again requesting legal representation on a new DWI charge.

Where an underlying problem is known to exist, a favorable resolution may depend upon addressing that problem in one way or another. However, whether or not it is necessary toward a favorable resolution of the pending criminal case, it is always important to discuss with and assist the client in addressing the underlying problem that gave rise to the conduct for which the client has been charged.