By Sarai Cook, Esq., Servant Leader, National Trauma Awareness Initiative

Trauma Is a Courtroom Issue

Trauma is understood to be the long-term consequences of an event or events that were physically or emotionally harmful to an individual.[i] Substance use, mental health disorders, and trauma have high rates of comorbidity across general populations.[ii],[iii] This high correlation between substance use, mental health disorders, and lifetime trauma exposure is even stronger among individuals who are justice involved.[iv],[v] The prevalence of trauma exposure among individuals who are justice involved is evidenced in an unpublished study funded by the John D. and Catherine T. MacArthur Foundation’s Research Network on Mandated Community Treatment. Researchers surveyed 311 mental health court participants and found that 67 percent of women and 73 percent of men reported experiencing physical abuse as a child; 70 percent of women and 25 percent of men reported experiencing sexual abuse or rape before the age of 20.[vi]

Merely being entangled in the court system can signal trauma exposure. For example, many behaviors that have been deemed criminal are also adaptive behaviors that some court participants are using to survive, from drug use and theft to trespass and sex work. These activities, along with justice involvement, increase the likelihood of trauma exposure.[vii],[viii],[ix] Unfortunately, justice for trauma-exposed individuals can be challenging to come by in many courtrooms across the country.[x] Furthermore, trauma survivors may not be aware of the impact trauma has had on their lives or they may not want to disclose their trauma history to the courts. Thus, rather than setting criteria or requiring disclosure, courts can promote access to justice for all individuals coming through the courtroom by taking a “universal assumption of trauma” approach and utilizing trauma-informed practices for all cases. As stated in SAMHSA’s concept of trauma,

“A program, organization, or system that is trauma-informed realizes the widespread impact of trauma and understands potential paths for recovery; recognizes the signs and symptoms of trauma in clients, families, staff, and others involved with the system; and responds by fully integrating knowledge about trauma into policies, procedures, and practices, and seeks to actively resist re-traumatization.” (SAMHSA 2014, 9)

By implementing and utilizing trauma-informed practices within the criminal justice system, we lessen accommodation needs for trauma survivors. Implementing trauma-informed practices and taking a universal assumption of trauma approach will help to alleviate administrative burdens on courts and better serve our most vulnerable people.

Considerations for Becoming Trauma Informed

More broadly, becoming trauma informed necessitates a mental shift in how judges, attorneys, and court staff see court participants. The courtroom is not immune to stereotypes, biases, and prejudice. Unfortunately, the effects of trauma can contribute to behaviors that can lead to people in the justice system being labeled as “lazy” or “irreparable.” Moving away from this kind of thinking takes education, considerable patience, empathy, and flexibility. Designing a trauma-responsive court process should be undertaken conscientiously.

One of the most impactful ways courts can move away from re-traumatization is by becoming cognizant of their language when referring to court participants. Stigmatizing language such as the term “drug addict” is known to perpetuate the negative effects of substance use disorder.[xi] Other dehumanizing words like “criminal defendant” or “the accused” only further prejudice and misguided stereotypes. Consider using person-first language that promotes the humanity of the person in the courtroom. Instead of “drug addict,” consider using “person in recovery” or “person with a substance use disorder.” Instead of “criminal defendant” or “the accused,” consider using “client” or “person charged with an offense.” There are many publicly available toolkits that provide greater insight on stigmatizing language and provide people-first alternatives.[xii],[xiii] It is important for attorneys and judges to learn about the effects of trauma and how these effects present in ways that are typically prejudiced and stereotyped by mainstream society. For courts to get the proper training, there needs to be adequate funding and allocated time to learn these new approaches to thinking about trauma in the courtroom. Similarly, court personnel and clerks have a lot more face time with court participants and need to be a part of the change. It is not enough to simply go to a few trauma-informed practices trainings. Transforming court systems takes active effort to minimize compound trauma. For substantive and long-lasting change to happen, it is important to work systemically and design metrics and systems of accountability. To be trauma informed, courts must change policies, procedures, practices, and spaces to accommodate individuals with trauma history. (For more information, read about how one courthouse was redesigned to be more responsive to trauma.)

SAMHSA’s GAINS Center recently produced a webinar, “Fostering Trauma-Informed Practices in Your Courtroom: Approaches for Judges, Court Staff, and Providers,” which can be accessed on SAMHSA’s YouTube channel.

SAMHSA’s GAINS Center also provides an in-person training, “How Being Trauma-Informed Improves Criminal Justice System Responses,” including a version specifically for judges.

When People “Fail to Comply”

One example of a trauma-induced barrier to achieving access to justice is executive function deficits.[xiv] Executive function deficits affect the high-level mental processes or abilities that influence and direct attention and memory.[xv] These executive functions “describe a set of cognitive abilities that include the ability to plan, organize, and strategize, pay attention to and remember details, start and stop actions, and form concepts and think abstractly.”[xvi] People with limited executive functioning have difficulty monitoring and regulating their behaviors.[xvii],[xviii] These difficulties can include monitoring and changing behavior as needed, planning future behavior when faced with new tasks and situations, anticipating outcomes, and adapting to changing situations. People with poor executive functioning will often have problems interacting with others and fitting in socially.[xix]

Spotting and Accommodating Executive Functioning Deficits[xx]

Attendance and Time Management

Individuals may have difficulty getting to appointments promptly because of the varied activities, processes, and interruptions they may experience while preparing to leave their homes or while commuting.[xxi] Similarly, individuals may experience time-management difficulties, affecting their ability to mark time as it passes incrementally by minutes and hours. It can also affect their ability to gauge the proper amount of time to set aside for court appointments. As a result, it may be difficult to prepare for or remember appointments that occur later in the week, month, or year.[xxii]

Trauma-Informed Response Tips

  • Reduce distractions and potential for misunderstandings
  • Be consistent and predictable
  • Use the latest technology for notifications and reminders about appointments and court obligations
  • Offer virtual hearings to help with attendance if there are transportation or scheduling barriers (Additionally, virtual hearings may be less stimulating and triggering than in-person court)

Concentration During Court and Paperwork

Individuals may experience decreased concentration, attributable to auditory and/or visual distractions, or difficulty with organization or prioritization. Distractions can include the sounds of traffic, chatter, doors being opened and closed, and common public noises. These decreases in concentration may cause individuals to have trouble completing paperwork efficiently and effectively.

Trauma-Informed Response Tips:

  • Provide simple step-by-step instructions with visuals
  • Issue devices like iPads to facilitate out-of-court participation, if necessary
  • Minimize clutter in the courtroom
  • Allow for more out of court participation
  • Signal first when giving instructions or directions

Social Skills

Individuals may have limitations exhibiting appropriate social skills. These limitations often manifest as interrupting others when working or talking, demonstrating poor listening skills, or communicating ineffectively.[xxiii]

Trauma-Informed Response Tips:

  • Provide clearly stated written expectations in layman terms
  • Offer frequent check-ins for understanding
  • Avoid using jokes and sarcasm
  • Involve peer support who has authority and respect
  • Provide time to cool down and offer frequent breaks
  • Give verbal encouragement
  • Prompt individuals before asking an important question

Implementing trauma-informed practices comprehensively or adopting a universal assumption of trauma approach across the criminal justice system is a big task. However, courts can help promote access to justice by adopting even one of these practices or response tips. Courts may want to self-reflect and ask themselves how they can take reasonable steps to address their own unconscious biases, prejudices, and stereotypes. A trauma-informed approach in the courtroom has the potential to change lives, promote recovery, support treatment engagement and retention, reduce recidivism, enhance safety inside the courtroom, improve court appearances, and ultimately reduce the caseload of the court.

Sarai Cook Headshot

Sarai Cook

With an ACES score of nine, civil and human rights attorney Sarai Cook continues to be directly impacted by many systems and cycles of oppression and poverty. Through these experiences, she has made it her life’s work to empower and encourage others by modeling the possibilities of overcoming cycles of oppression. Ms. Cook has worked in community development, and public service at the Tribal level with the Muscogee (Creek) Nation, national level with the United States Department of Energy, and internationally.

Ms. Cook is the recipient of the National Center for Native American Economic Development 40-Under-40 award, the Muscogee Creek Nation’s Professional of the Year award, and the New Leadership Oregon Outstanding Alumni award. In addition to leading the National Trauma Awareness Initiative, Ms. Cook writes and speaks about the intersection between mass incarceration, disability law, civil rights law, and criminal justice system reform. She brings valuable first-hand insight into policy work, where many impacted people do not have a voice.

[i] SAMHSA’s Trauma and Justice Strategic Initiative, SAMHSA’s Concept of Trauma and Guidance for a Trauma-Informed Approach, HHS Publication No. (SMA) 14-4884, Rockville, MD: Substance Abuse and Mental Health Services Administration, (2014), https://ncsacw.samhsa.gov/userfiles/files/SAMHSA_Trauma.pdf.

[ii] Lamya Khoury, Yilang L. Tang, Bekh Bradley, Joe F. Cubells, and Kerry J. Ressler, “Substance Use, Childhood Traumatic Experience, and Posttraumatic Stress Disorder in an Urban Civilian Population,” Depression and Anxiety 27, no. 12 (March 2010): pp. 1077-1086, https://doi.org/10.1002/da.20751.

[iii] Jenna L. McCauley, Therese Killeen, Daniel F. Gros, Kathleen T. Brady, and Sudie E. Back, “Posttraumatic Stress Disorder and Co‐Occurring Substance Use Disorders: Advances in Assessment and Treatment.,” Clinical Psychology: Science and Practice 19, no. 3 (2012): pp. 283-304, https://doi.org/10.1111/cpsp.12006.

[iv] “Mental Health,” Prison Policy Initiative, last modified July 14, 2021, https://www.prisonpolicy.org/research/mental_health/.

[v] Bryanna Hahn Fox, Nicholas Perez, Elizabeth Cass, Michael T. Baglivio, and Nathan Epps, “Trauma Changes Everything: Examining the Relationship Between Adverse Childhood Experiences and Serious, Violent and Chronic Juvenile Offenders,” Child Abuse & Neglect 46 (2015): 163-173, https://doi.org/10.1016/j.chiabu.2015.01.011.

[vi] Lisa Callahan, Henry Steadman, Roman Vesselinov, & Pamela C. Robbins, Comparing Outcomes for Women and Men in Mental Health Courts, Unpublished (2012).

[vii] Thomas Loughran, and Joan Reid, A Longitudinal Investigation of Trauma Exposure, Retraumatization, and Post-Traumatic Stress of Justice-Involved Adolescents, U.S. Department of Justice (August 2018), https://www.ojp.gov/pdffiles1/ojjdp/grants/252015.pdf.

[viii] European Federation of National Organisations Working with the Homeless, Recognising the Link Between Trauma and Homelessness, (January 2017), https://www.feantsa.org/download/feantsa_traumaandhomelessness03073471219052946810738.pdf.

[ix] Alexandra Lutnick, Jennie Harris, Jennifer Lorvick, Helen Cheng, Lynn D. Wenger, Philippe Bourgois, and Alex H. Kral, “Examining the Associations Between Sex Trade Involvement, Rape, and Symptomatology of Sexual Abuse Trauma,” Journal of Interpersonal Violence 30, no. 11 (July 2015): 1847–63, https://doi.org/10.1177/0886260514549051.

[x] Lena J. Jäggi, Briana Mezuk, Daphne C. Watkins, and James S. Jackson, “The Relationship between Trauma, Arrest, and Incarceration History among Black Americans: Findings from the National Survey of American Life,” Society and Mental Health 6, no. 3 (November 2016): 187–206, https://doi.org/10.1177/2156869316641730.

[xi] Katie Wang, Melissa R. Schick, and Nicole H. Weiss, “The Role of Executive Functioning Deficits in the Association between Substance-Use-Related Stigma and Substance Use Problems among Trauma-Exposed Individuals.” Substance Abuse, March 24, 2021, 1–8. https://doi.org/10.1080/08897077.2021.1903652.

[xii] TaLisa Carter, “Person-First Language Is Not Enough,” Urban Wire: Crime and Justice, The Urban Institute, last modified May 2021, https://www.urban.org/urban-wire/person-first-language-not-enough.

[xiii] “The Language Project,” The Marshall Project, accessed July 30, 2021, https://www.themarshallproject.org/2021/04/12/the-language-project.

[xiv] “The Science of Adult Capabilities,” Harvard University Center on the Developing Child, accessed July 30, 2021, https://developingchild.harvard.edu/science/deep-dives/adult-capabilities/.

[xv] Job Accommodation Network, “Accommodation and Compliance Series: Employees with Executive Functioning Deficits,” Job Accommodation Network, U.S. Department of Labor’s Office of Disability Employment Policy, (2016) https://www.biav.net/wp-content/uploads/2018/10/2016.1209-Accommodations-at-work-Exec-Function-JAN.pdf.

[xvi] Ibid.

[xvii] Adele Diamond, “Executive Functions,” Annual Review of Psychology 64, no. 1 (January 3, 2013): 135–68, https://doi.org/10.1146/annurev-psych-113011-143750.

[xviii] “What to Know About Executive Function Disorder,” Medical News Today, last modified May 20, 2019, https://www.medicalnewstoday.com/articles/325402.

[xix] “Executive Functioning Deficits,” Job Accommodation Network, accessed July 30, 2021, https://askjan.org/limitations/Executive-Functioning-Deficits.cfm.

[xx] Others include mental confusion; organizing, planning, and prioritizing; stress intolerance; attentiveness and concentration; control of anger and emotions; decreased stamina and increased fatigue; and sleeping and staying awake.

[xxi] Job Accommodation Network, “Accommodation and Compliance Series: Employees with Executive Functioning Deficits,” Job Accommodation Network, U.S. Department of Labor’s Office of Disability Employment Policy, (2016) https://www.biav.net/wp-content/uploads/2018/10/2016.1209-Accommodations-at-work-Exec-Function-JAN.pdf.

[xxii] Melanie Whetzel, “Job Accommodations for Off-Task Behaviors,” Job Accommodation Network, accessed July 30, 2021, https://www.ssa.gov/ndf/documents/Panelist%20-%20Melanie%20Whetzel.pdf.

[xxiii] Job Accommodation Network, “Accommodation and Compliance Series: Employees with Executive Functioning Deficits,” Job Accommodation Network, U.S. Department of Labor’s Office of Disability Employment Policy, (2016) https://www.biav.net/wp-content/uploads/2018/10/2016.1209-Accommodations-at-work-Exec-Function-JAN.pdf.

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