Today’s blog was written by Iain Smith, a criminal defence
lawyer at Keegan Smith, Livingston, a core member of West Lothian ACEs Hub, and
a trustee of Aid & Abet.
This article was originally posted in February 2019 in
Journal of the Law Society of Scotland (volume 64, no 2) and can be accessed
here:
Kindness in court: who cares?
Scotland has an enviable reputation for being a country with
a compassionate heart. As a nation, we have been at the forefront of a recent
upsurge in understanding of the biological science of the impact of childhood
trauma on the developing brain, gaining an awareness of adverse childhood
experiences (“ACEs”). Much of the campaigning has been at grassroots level,
inspired by Dr Suzanne Zeedyk, leading trauma psychologist and Tina Hendry,
former police officer and ACEs guru, but it is now bolstered by the backing of
the Scottish Government. To date, the focus has been on health and education,
but attention is now rightly turning to our justice system. Lawyers are slowly
learning about ACEs, assisted by Dr Zeedyk’s article at Journal, June 2018, 16.
As a criminal defence lawyer for more than 25 years, hearing about this science
was a lightbulb moment and allowed me to view my clients, who are often wounded
and broken individuals, in a different way. In my job, you regularly observe
scars left by trauma – an inability to self-regulate and, for many, a reliance
on substances to self-medicate emotional pain.
Relevance of background
Not every crime committed has a background of ACEs, and not
everyone with significant childhood trauma commits crime. However, a
significant proportion of people with convictions have had high doses of toxic
stress from childhood that made it more likely, though not inevitable, that
they would enter the criminal justice system. Here is a shocking statistic:
while only approximately 5% of Scottish children are in care at some point, 70%
of the inmates at Polmont Young Offenders Institution have care experience.
That’s not just coincidence, and research suggests we are not doing enough for
children in care. Hopefully the ongoing Independent Care Review can recommend
ways to reduce that appalling figure and seek to redress this imbalance.
Experts believe that a stable nurturing adult can rescue children from such
stress and provide a buffer. Adults who have suffered trauma can also be
salvaged by such care. Harvard Centre for the Development of the Child states:
“Researchers provide three principles – reducing stress, building positive
relationships, and strengthening life skills – [as] the best longterm
preventative to combat ACEs”.
Hurt breeding hurt
What has any of this got to do with lawyers and the criminal
justice system? If we look at the convicted person through an ACEs lens we may
see things differently, prioritise help rather than punishment, and think
creatively rather than of the futile revolving door of prison. Hurt people
often hurt people, but they continue to hurt themselves more. Looking at
criminal justice social work reports, you could be forgiven for missing the
huge scientific discovery of ACEs. Information is tucked away quietly under
“background” and reports often only whisper about childhood adversity, saying
the person had a “poor upbringing” but giving no sense of the levels of misery
and toxic stress created by grown-ups, either directly or indirectly, and the
enormity of the impact on the adults these ACEs-riddled children become. The
clients I deal with are often the hardest to like, but in the greatest need of
love. Scratch the surface of their lives and you will witness terrible
adversity and a tragic backstory. People who have high ACEs do bad things, but
are rarely innately bad people. Armed with this knowledge, what effect has it
had on how I practise as a lawyer?
Professional response
I now ask clients the question “What has happened to you?”,
rather than “What is wrong with you?” I am more patient, more compassionate and
I listen. In court, I discuss childhood trauma if it is relevant and suggest
long term solutions to improve the individual’s life away from crime. I try to
give them hope and encourage perseverance. After court I signpost clients to
seek help from agencies, for example Aid & Abet, a charity which has
volunteers with experience of the criminal justice system and who have turned
their lives around. They can engage with offenders, young and old, to show
recovery is possible. Regrettably, when everything fails, I attend clients’
funerals, sometimes with few other people there. It is exhausting, and as a
business model it would not meet with approval from Dragons’ Den. So why bother
with this ACEs stuff? If we all look back to why we became criminal lawyers,
and it certainly wasn’t for the money, we may surprise ourselves by remembering
we wanted to help the most socially deprived and overlooked citizens and to
give them a voice. The other professionals in the justice system need to play
their part by becoming trauma informed. Stop using derogatory words like “neds”
or “junkies”. The use of this type of language sustains stigmas and myths that
somehow people “choose” this way of life. Prosecutors should look at young
persons’ backgrounds and consider their individual circumstances as well as the
offence itself, in order to consider diverting them away from the court rather
than stamping a label on them which will stop them making progress in life.
Recognising trauma
What effect could awareness of childhood trauma have on
judges? I seek to encourage judges to consider presiding with kindness when it
comes to dealing with these vulnerable and wounded offenders. As a society, we
rightly recognise that there can be fallout from war for soldiers and this can
create casualties in civilian life because of PTSD. We empathise with veterans
because we feel a duty of care to them and we try to help them. Yet why should
children who have experienced high levels of toxic stress be treated so
differently? Their wounds may not be state inflicted but may be passively
created by societal failure. In care until 15 years of age, children who are
looked after by local authorities are seen as a “wee shame”; thereafter the
same kids are deemed “wee shites” and treated as a problem in the community.
And as for the next generation? James Docherty from the Violence Reduction Unit
says: “When it comes to parenting with ACEs, what you don’t transform, you
transmit.” Surely it’s time to try something different. ACEs research gives a
bio-psycho-social platform and evidence based awareness to develop a new
approach.
Two American ideas
The innovative Community Justice Scotland team has invited
two prominent United States judges to come over to Scotland to share their
ideas at events in March 2019. Both judges employ a judicial concept created by
academic lawyer and psychologist Tom R Tyler, called procedural justice. The
basic pillars of this are “voice, respect, neutrality and understanding”. The
jurisprudence behind procedural justice is that persons who perceive they are
being dealt with fairly and with dignity before a court will respect the
decision of the court, the judge and the law. Judge Ginger Lerner-Wren created America’s
first mental health court in 1997 in Florida. There are now over 400 specialist
mental health courts in the USA and worldwide. Her problem-solving court is an
example of how to dispense what she calls “the law reform science of
therapeutic justice”. She has recently published a book called A Court of
Refuge: Stories From the Bench of America’s First Mental Health Court. It sets
out the remarkable efforts she and her team have made to divert people with
mental illness and co-occurring substance use disorders from an
anti-therapeutic setting in jail to more humane treatments in the community. In
the mental health court, treatment is offered over punishment, with monitoring
through a collaborative and inter-disciplinary process. It mirrors how the Violence
Reduction Unit reduced knife crime in Glasgow by treating violence as a public
health concern, a disease that needed to be cured at source. Interviewed
recently on her “humanising” approach, she said: “We developed a collaborative
process that was a swift diversionary means of having individuals transported
out of an inappropriate system of care (i.e., a jail). The court instead acted
like a funnel to move people from one inappropriate system to a humane system
of health care.” Judge Victoria Pratt sat as a judge in Newark, New Jersey, in
a notorious court nicknamed the “Green Monster”. She was appointed by the then
mayor, now Senator, Cory Booker. She says: “I just get on the bench and treat
people the way I would want my family members to be treated.” She ensured
people left her court with hope, as without it they were sure to return.
Smart justice
Presiding with kindness will garner respect not only for the
judge, but the court and the law. It will improve responses, and the judge may
be that person who disrupts the cycle of offending by showing compassion. The
degradation ceremony seen in our sheriff courts, often characterised by
frustrated judges shouting at and humiliating broken people, doesn’t work. Why
not set a positive example for offenders to look up to, rather than fear? Court
participants may, however, pay attention to someone who is kind. Being informed
of ACEs may allow judges to make informed and transformative disposals. A
judge’s job is not an easy one and is undoubtedly emotionally taxing, but
kindness literally costs nothing and can happen without training or delay. Some
of you may think this approach is soft on crime and pandering to the “snowflake
generation”. It is, however, “smart justice”, a term coined by Karyn McCluskey,
the co-founder of the successful Violence Reduction Unit and now CEO of
Community Justice Scotland. Smart justice means long term reduction of crime,
and genuine and real benefits financially by reducing crime (it costs £44,000
to keep someone in jail for a year) – a no-brainer for the humanitarians among
us. It will require a leap of faith, a change of lens and perseverance. At the
end of an illustrious career spanning two decades, one judge displayed
compassion on their last day on the bench by hugging an offender who was always
in and out of the court. A very bold thing to happen in a Scottish court.
Imagine, however, what might have happened to the girl if the judge had hugged
her (metaphorically) the first time she appeared in court rather than the last
time?
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