A combat veteran enters a courtroom charged with a crime. During his first appearance he tells the judge, in colorful language, he doesn’t care about the charges nor what sentence the judge will impose. He does this even as the judge tries to explain to him that while charged, he has not been convicted of anything.
He is not just a soldier; he is also a veteran of the court system. He has been convicted before, and in even more colorful language he tells the judge to ‘get on with it’ and just give him the maximum sentence.
What he has not told the judge, nor anyone other than his deceased wife, is that he is suffering from serious trauma from his combat experiences. Instead, that trauma was expressed in his substance abuse, nightmares, recklessness and the repeated disrespect he showed anyone with authority. Emotionally he had never returned home from Vietnam.
Trauma is Pervasive in the Justice System
It is not just combat veterans whose appearances in court are driven by serious trauma. In the American justice system, 96% of woman and 89% of men have experienced significant trauma, often driven by an early childhood history of sexual or domestic abuse. These defendants often fall victim to a self-destructive cycle fueled by anger and erratic emotional behaviors, which can involve acts of violence along with alcohol and drug misuse.
Many also suffer from forms of social exclusion, poverty, and homelessness. They are more likely to engage in serious risk-taking conduct, which means they are more likely to be arrested and appear in court.
An Informed Mental Health Care
Recently courts have begun to recognize trauma as a major driving force behind certain types of criminal behavior. This recognition emerged in the 1970’s not in courtrooms, but among medical providers who were treating veterans returning home from Vietnam, diagnosed with Post Traumatic Stress Disorder (PTSD).
In the early 1990’s a major study of more than 13,000 adults looked at the impact of childhood trauma on adult behavior. This study asserted that traumatic childhood experiences were more common than previously understood and were correlated with depression, substance abuse, the use of antipsychotic medications, multiple sex partners, attempted suicide and an increased likelihood of becoming a victim of sexual assault or domestic violence. The findings of this study drove the creation of trauma-informed mental health care.
About the same time, in the criminal justice system, specialized dockets, at first called Drug Treatment Courts, began to collaborate with mental health providers. As these courts absorbed the concept of trauma-informed health care, judges began to recognize the importance of developmental trauma in shaping criminal behavior.
An Informed Justice System
An essential feature of a trauma-informed court is the understanding that an individual’s behaviors are not always a result of character flaws, nor are they necessarily symptoms of mental illness. Rather, they can be behavioral ploys used to cope with the impact of traumatic experience. This awareness does not excuse the defendant’s criminal behavior, rather it should cause the court to adopt a new sentencing approach that could be more successful in reducing recidivism.
Serious trauma can create a sense of helplessness and even shame.
Individuals who have experienced serious trauma often believe they have lost control over their lives. This can create a sense of helplessness and even shame. A trauma-informed judge should seek to sentence in a manner that promotes a defendant’s feelings of worth and self-efficacy. This can be challenging given the traditional role of judges and traditional courts in imposing sentences. However, it is critical that these individuals feel their voices have been heard and that they feel they had an impact on the sentencing process.
Individuals who have experienced serious trauma often believe they have lost control over their lives. This can create a sense of helplessness and even shame. A trauma-informed judge should seek to sentence in a manner that promotes a defendant’s feelings of worth and self-efficacy. This can be challenging given the traditional role of judges and traditional courts in imposing sentences. However, it is critical that these individuals feel their voices have been heard and that they feel they had an impact on the sentencing process.
Procedural Fairness in the Courtroom
When I first came to the bench, I believed that fear was one of the best tools a judge could employee in sentencing. Over time, I learned that I was wrong. A judge who adopts the four key principles of procedural fairness[i] is far more effective than a judge who relies on fear as a motivator. That is the topic for the next blog.
In the days when I still applied fear as a sentencing tool, I had sentenced the defendant I wrote about above. By the time he came back to my court, I had begun to apply the principles of procedural fairness in both my proceedings and my sentencings. This soldier became one of the first people I sentenced to the court’s new Veterans Treatment Court. Even then, he told me he was not going to cooperate with the sentence.
When he successfully graduated from Veterans Treatment Court, I told him how pleased I was that he had finally come home from Vietnam.
[i] The four key principles of procedural fairness are:
- Voice
- Neutrality
- Respectful Treatment
- Trustworthy Authorities