Gone Soft? Negotiating Harm Reduction From A Position Of Power

One of the most common issues that female lawyers struggle with is the idea that we’re soft – too empathetic, lenient on offenders, or otherwise unable to contend with the harsh realities of law. What no one in the old guard is willing to admit, though, is that the law is oriented towards punishment, not justice. And that means we’re often punishing people for situations beyond their control.

In order to counter the excessively punitive nature of the law, particularly around fairly minor transgressions, female lawyers are called on to consider the power of harm reduction practices and to negotiate for these alternatives rather than traditional sentencing. That means honing your negotiation skills to identify core problems, community interests, and mutual benefit. Harm reduction isn’t soft on crime – it’s just – and it’s important for us to remember that in light of the systems of supremacy that marginalize minorities in all areas of life.

Understanding Harm Reduction

As a concept, harm reduction comes out of the field of social work and is based on the observation that traditional measures like incarcerating people for drug use didn’t solve any problems; the state paid out for ever increasing jail sentences, only to have individuals relapse and wind up back up in court. Harm reduction advocates focus on public health and well-being instead, whether that means developing needle exchange programs to cut HIV transmission or advocating for extended public transportation programs as an alternative to drunk driving.

How does this apply to legal negotiation? When you work as a defender, your job is to seek justice for your client, not just to defend them against accusations; also, justice doesn’t just mean they get to walk free. Rather, true justice is asking the society that creates problems through institutionalized racism, unchecked community violence, and economic inequality to address those factors when deciding on suitable consequences for an offender. When you negotiate for your clients based on these unequal structures, you are acting as an advocate on all fronts.

Addressing Standard Practices

Traditional harm reduction advocates focus on the overall social failings that result in antisocial behaviors, but as a lawyer, you’re tasked with addressing the single case before you. Consider, for example, a scenario in which you’re litigating a car accident case involving drunk driving. The court may want to hold your client on bail and then ultimately revoke their license or incarcerate them for a period of time. Your role is to negotiate for more productive outcomes.

When it comes to drunk driving, there are typically a few key problems. In repeat offenders, the individual is typically an alcoholic. Locking them up isn’t going to address that fact and your client is likely to resume drinking as soon as they’re released. Similarly, taking away the defendant’s license can leave them economically insecure because they’re unable to get to work. They may lose their job, leading them to engage in even more undesirable behaviors or deepening their alcoholism. It’s a vicious cycle, and that’s the nature of the modern legal system, in many cases.

From a justice perspective, in a case like this, you might recommend that your client be entered into a 24/7 Sobriety program that allows them to address their drinking problem while participating in society normally, or have the opportunity to attend rehab before further punishment is recommended. This kind of solution addresses key negotiation points about the problem and the community’s investment therein. If a drunk driving defendant is made to address their drinking and is monitored on a daily basis for alcohol consumption, this makes the roads safer for everyone in the long-term rather than just for the term of the prison sentence.

Harm reduction may not be a standard legal paradigm, but that doesn’t mean you can’t advocate for it or make it a core component of your approach academically and in the courtroom. You can publish on the topic, found negotiations on it, and push to change the status quo. Law is a work in progress and the strongest stance you can take is one of justice, not one of rote repetition.

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