(Photo by Colin Lloyd on Unsplash)

The concepts of ‘compassionate courts’, ‘humane justice’, ‘kindness in court’, and trauma-informed practice exist in the law and the criminal justice system in the US, England, Scotland, and Australia. These are the drivers that led me to the Magnolia Project.

Trauma-informed sentencing

Earlier this year I submitted my PhD thesis. It explored the degree to which South Australian judges used trauma-informed practices when sentencing defendants. This week a (much shorter) article was published, based on my research, in the Journal of Criminology. The article provides a brief overview of the 90,000+ words of my thesis.

The 4Rs

My article used SAMHSA’s trauma-informed practice framework. Trauma-informed sentencing practice requires that judges:

  • realise the presence of trauma,
  • recognise its relevance,
  • respond in a way that is informed by trauma, and
  • act to resist re-traumatisation.

I used this ‘4Rs’ framework to analyse sentencing remarks of 448 defendants published in 2019.

The 1st R: Realising trauma was present

Most defendants were non-Aboriginal men (n=336), and for the majority (n=187, 55.7%) judges did not ‘realise’ adversity or trauma was present. For most Aboriginal and female defendants (and all female Aboriginal defendants), judges realised that adversity was present in their lives. There were no defendants identified as Torres Strait Islander peoples.

The 2nd R: Recognising its relevance

Judges rarely recognised how adversity and trauma were associated with criminality. They did in 111 of the 233 sentencing remarks including 26 female defendants (55.3% of females) and 13 Aboriginal defendants (36.1% of Aboriginal peoples).

The 3rd R: Responding in a trauma-informed way (both sentencing process and sanction)

There are five principles of trauma-informed practice: safety, trustworthiness, empowerment, choice and collaboration. I developed the following proxy measures to analyse the sentencing remarks.

  • Safety: judges referred to defendants directly and by name. (Safety was absent when judges referred to defendants in the third person even when defendants were present in court).
  • Trustworthiness: judges explained an element of the sentencing process to the defendant.
  • Safety and Empowerment: judges asked the defendant whether they understood the sentencing sanction.
  • Choice, collaboration and empowerment: judges asked defendants whether they accepted and would abide by the sentencing decision.

For 64 defendants the sentencing process was characterised by all five principles of practice. Most defendants (n=233) experienced one or more of the trauma-informed principles of practice.

Most defendants did not received trauma-informed sanctions. When they did, these were based on judges’ intentions (n=82; 35.2%), not because the resulting sanction was necessarily evidence-informed.

The 4th R: Resisting re-traumatisation

Judges acknowledged a lengthy prison sentence would lead to traumatic impacts on the defendant, the defendant’s children or other dependents in 30 percent of cases.

So, what are the next steps?

Judges recognised (at least in some cases) that trauma ‘explains’ criminal behaviour. Trauma-informed sentencing can still be enhanced. For example, judicial and legal education, better information-sharing about the relevance of trauma, intergenerational trauma and cultural trauma, and legal and practice reform can also promote trauma-informed practice.

To access the full article, go to my website: https://katherinemclachlan.com/publications/